ARGUED  AND  DETERMINED  IN  THE 


SUPREME  COURT,  AT  SPECIAL  TERM, 


WITH  THE 


POINTS  OF  PKACTICE  DECIDED, 


FROM 


(October  tern,  1844,  to  September  term,  1845. 


BY  NATHAN  HOWARD,  JR., 

OOUNSELLOR-AT-LATV,  AND  DEPUTY  CLEBK   OF  THE  SUPREME   COUBT. 


VOL.  I. 


NEW    YORK: 
BANKS  &  BROTHERS,  LAW  PUBLISHERS 

No.  144  NASSAU  STREET. 

ALBANY:  475  BROADWAY. 

1859. 


vl 


Entered,  according  to  Act  of  Congress,  in  the  year  eighteen  hundred  and  fifty-nine, 

BY  NATHAN  HOWARD,  Jit, 
In  the  Clerk's  Office  of  the  District  Court  of  the  Southern  District  of  New- York. 


CASES    REPORTED. 


PAGE 

Adams  agt.  Elliott 220 

Albert!  agt.  Peck 330 

Allen  agt.  Collins , 251 

Alston  agt.  Mechanics'  Mutual  Insurance  Company 82 

Anderson  agt.  Osborn 79 

Anderson  agt.  Vandenburgh 212 

Anthony  agt.  Dunbar 117 

Archer  agt.  Douglass 93 

Arnold  agt.  Thomas 246 

Baker  agt.  Long  Island  Railroad  Company 214 

Baker  agt.  Mount 238 

Baldwin  agt.  Tillson. 173 

Ballou  agt.  Vandemark .' 237 

Bangs  agt.  Strong 181 

Barker  agt.  Gates 77 

Barnard  agt.  Darling 223 

Barnard  agt.  Woodworth I  o  I 

Baxter  agt.  Seamans 51 

Belknap  agt.  Ives 218 

Bell  agt.  Bell 71 

Bell  agt.  Robinson 118 

Billings  agt..  Cook G7 

Birdsall  agt.  Taylor 89 

Bliss  agt.  Treadway 245 

Bodle  agt.  Chenango  County  Mut.  Ins.  Co 20 

Borst  agt.  Bovee 63 

Bosher  agt.  Harris 206 

Boughton  agt.  Lockwood 56 

Bradt  agt.  Mount 33 

Bromaghim  agt.  Gorse 53 

Bross  agt.  Nicholson 158 

Brown  agt.  Briggs 152 

Brown  agt.  Torrance 23 

Brown  agt.  Wesson 141 

Bull  agt.  Babbitt 184 

Buruhnm  agt.  Smith 46 

Burton  agt.  Temple 8 

Butts  agt.  Campbell 88 


IV  NEW-YORK  PRACTICE  REPORTS. 

Cases  Reported. 

PAGE 

Cagger  agt  Gardner 142 

Campbell  agt.  McCormick 251 

Campbell  agt  Spencer 97,  199 

Carter  agt  Goodrich 239 

Center  agt  Gosling 210 

Chamberlain  agt  Gurney '. 238 

Chappell  agt  Matteson 248 

CJaiborne  agt.  Boker 39 

<  la rk  agt  Fraser ». 98 

Clark  agt  Jewett 224 

(.'lark  agt  Rawson 17 

Clarke  agt  Gray 128 

Clute  agt  Parker 229 

Cobb  agt  Robinson 235 

Coffing  agt.  Tripp 115 

Cole  agt.  Wright 132 

Colvin  agt  Alvord 99 

Commercial  Bank  of  Oawego  agt  Burckle 226 

Cooper  agt  North 59 

Corning  agt.  Tripp 14 

Cowenhoven  agt  Onderdonk 60 

Cowton  agt  Anderson 145 

Cragin  agt  Travis 157 

Crane  agt  Crofoot 191 

Davis  agt.  Weyburn 153 

Davis  agt.  Wiggins 159 

Day  ngt.  Beach 236 

Dayton  agt.  Vincent 6 

De  Dewandelaer  agt.  Hager 63 

Deeth  agt.  Purdy 45 

Delehanty  agt  Hoffman 9 

Dodge  agt  Passage 158 

Doty  agt.  Brown 245 

Dresser  agt.  Brooks 169 

Dresser  ngt  Smith 172 

Danckel  agt  Farley 180 

Dunham  agt  Van  Arnuni 225 

Dunn  ngt.  Mason 41 

Durant  agt  Cook 45 

Elder  agt  Bogardus ; 117 

Feakins  agt.  Engel 5 

Felt  agt  Hyde 64 

Finch  agt  Graves 198 

Fish  agt  Lyon 234 

Fowler  agt  Hay 40 

Freeland  agt.  Marvin 131 

Furlong  agt  Munn 43 

Gale  agt.  Hoysradt 19,  72,  197 

( inrl-iitt  agt.  Bradner 122 

Gifford  agt  Babbott 64 

Gilbert  agt  Chapman 

Gillespie  agt  Stanleas 101 

Goff  agt.  Anderson 237 

Goodenow  agt  Butler -  - 


NEW-YORK  PRACTICE  REPORTS.  V 

Cases  Reported. 

PAGE 

Goodenow  agt  Livingston 232 

Green  agt.  Russell 8 

Gregory  agt.  Travis 92 

Gurney  agt.  Parks 140 

liaight  agt.  Rogers 155 

Hale  agt.  Heyser 220 

Hall  agt.  Gordon .' 99 

Hall  agt.  Miller 184 

Handy  agt.  Empie 46 

Harker  agt.  McBride 41,  108 

Harris  agt.  Ensign 103 

Harris  agt.  Warren 139 

Hart  agt.  McGarry 74 

Hay  agt.  Fowler 127 

Hayes  agt.  Jones 1 47 

Heath  agt.  Wright 250 

Hemingway  agt.  Spaulding 70 

Henry  agt  Henry 167 

Herring  agt.  Hallenbeck 89 

How  agt.  Gilbert 107 

Howe  agt.  Hasbrouck 68 

Howell  agt.  Kinney 105 

Hugenin  agt.  Kennedy 120 

Hull  agt.  Halsted 174 

Hull  agt.  Joesbury 192 

Hunter  agt.  Schuyler 96 

Hurd  agt.  Merritt 38,  39 

Ingraham  agt.  Wheeler 65 

In  the  Matter  of  Faulkner 207 

In  the  Matter  of  Glenn 213 

In  the  Matter  of  Justices  of  the  Superior  Court 200 

In  the  Matter  of  Robinson 213 

In  the  Matter  of  Russell 149 

In  the  Matter  of  Walsworth 61 

Ives  agt.  Vandewater 168 

Jennings  agt.  Holbert 66 

Johnson  agt.  Anthony 10,  173 

Johnson  agt.  Johnson 215 

Johnston  agt.  Davis 239 

Jones  agt.  Van  Epps 105 

Jordan  agt.  Posey 123 

Kennedy  agt.  Newsom 121 

Kingston  Bank  agt.  Swift 12 

Knowles  agt  Poillon 252 

Lansing  agt.  Mickles 248 

Lawrence  agt.  New- Jersey  Railroad  and  Transportation  Company 250 

Learned  agt.  Betts 7 

Lee  agt.  Tompkins 44 

Legate  agu  Lagrille 15 

Livingston  agt.  Comstock 253 

Livingston  agt.  Hicks 224 

Livingston  agt.  Mclntyre 253 

Luyster  agt.  Hoag »8 

Lynes  agt.  Xoble 26 


vi  NEW-YORK  PRACTICE  REPORTS. 

Cases  Reported. 

PAGE 

Maher  agt  Conwtock 87,  175 

Martin  agt  Odell 108 

Mason  agt  Bidleman 62 

Masters  »gt  Bailoy 42 

Mather  agt.  Wardell 172 

Mather  agL  Wardwell 61 

McCartney  agt.  Betts 73 

rmott  agt.  Davison 194 

McDowell  agt  Appleby 229 

McKnight  agt.  Baker 201 

Medbury  agt.  Butternuts  and  Sherbourne  Turnpike  Company 231 

Merritt  agt  Seacord 95 

Miller  agt  Ames , 65 

Miller  agt  Huntington 218 

Miller  agt  Miller 162 

Miller  agt.  Palmer 54 

Mills  agt  Chapman 102 

Moftat  agt.  Judd 193 

Morrell  agt  Gibson 208 

Moss  agt  Raynor 110 

Muun  agt  Greenwood 32 

Northrop  agt.  Wright 146 

Ogden  agt  Beebe 69 

Olmstead  agt.  Jones 254 

Osborn  agt.  Van  Cort 51 

Otman  agt.  Fish 185 

Overton  agt.  Stanley 64 

Parce  agt  Halbert   235 

Parent  agt.  Kellogg 70 

Parow  agt.  Cary 66 

Payn  agt  Parks 94 

Pease  agt.  Blossom 222 

Pentz  agt  Willoughby 27 

People  agt  Backman 221 

People  agt  Brown 67 

People  agt  Oakes 195 

People  agt.  Stevens i 241 

People  ex  reL  Bank  of  Monroe  agt.  Pen-in    75 

People  ex  rel  Blacksmith  agt  Tracy 18G 

People  ex  reL  Clark  agt  Judges  of  Essex  Common  Pleas 114 

People  ex  reL  Coller  agt  Supervisors  of  Dutchess 163 

lYuple  ex  rel  Cook  agt  Judges  of  Niagara  Common  Picas 196 

People  ex  reL  Crandall  agt.  Babcock 5 

People  ex  rel.  Georner  agt.  Crosby 243 

People  ex  reL  Griffin  agt  Judges  of  New- York  Common  Pleas 222 

People  ex  rel.  Jones  agt.  Judges  of  Dutchess  Common  Pleas Ill 

People  ex  reL  Kirkham  agt.  Cotes 160 

People  ex  reL  Koon  agt.  Judges  of  Renssolaer  Common  Pleas 109 

People  ex  reL  Martin  agt.  Mayor,  Ac.,  of  Brooklyn 53 

People  ex  reL  Onderdonk  agt  Molt 247 

People  ex  reL  Smith  agt.  Mayor,  Ac.,  of  New-York 90 

People  ex  reL  Thomson  agt  Supervisors  of  Warren 116 

Pier  agt  Page 40 

Pike  agt  Power 54.  103,  1 '.  I 

Platt  agt  Burckle 220 


NEW-YORK  PRACTICE  REPORTS.  VU 


Cases  Reported. 


Platt  agt.  Littell 71 

Pomeroy  agt.  Lowusbury 30 

Popham  ads.  Baker 166 

Post  agt.  Haight 171 

President,  &c.,  of  Chemung  Canal  Bank  agt.  Supervisors  of  Chemung 162 

President,  &c.,  of  Dutchess  County  Bank  agt.  Ibbotson 60 

Rathburn  agt.  Woodworth 151 

Riley  agt.  Van  Amrange '. 43 

Robbins  agt.  Lewis 202 

Robinson  agt.  McClellan 90 

Robinson  agt.  Merritt 165 

Robinson  agt.  Sinclair 107 

Rose  agt.  Hogeboom 66 

Royce  agt.  Mott 60 

Rusk  agt.  Van  Benschoten 149 

Rust  agt.  Rowe 48 

Sabin  agt.  Ames 228 

Schermerhorn  agt.  Jones 147 

Seacord  agt.  Burling ;..;....«<..' 175 

Seamans  agt.  Tillson 19 

Sergeants  agt.  Baker 9 

Sherman  agt.  Chittenden 91 

Slocum  agt.  "Watkins ; 42 

Smith  agt.  Bradley 244 

Smith  agt.  Caswell. < 133 

Smith  agt.  Frizell . . 148 

Smith  agt.  Hunt 241 

Smith  agt.  Reid 23 

Smith  agt.  Roberts 42 

Smith  agt.  Skinner 122 

Snow  agt.  Green 216 

Snyder  agt.  Olmstead 194 

Spencer  agt.  Stevens 97 

Spooner  agt.  Frost 192 

Sprague  agt  Mumford 68 

Starbuck  agt.  Hall 58 

Steer  agt.  Head 15 

Stephens  agt.  Ely 35 

Stephens  agt.  Thompson 136 

Stillman  agt.  Whiting 243 

Stinnard  agt  New- York  Fire  Insurance  Company 1 69 

Stroud  agt.  Harp 133 

Tallmadge  agt.  Wallis 100 

Thompson  agt.  Gates 77 

Thompson  agt.  Smith 218 

Tinker  agt.  Craft 112 

Titus  agt.  Kent 80 

Tomlinson  agt.  Willey 247 

Travis  agt.  Cragin 157 

Travis  agt.  Hadden 57 

Troy  City  Bank  agt.  Grant 135 

Tucker  agt.  Black 249 

Van  Elten  agt.  Hurst 26 

Van  Namee  agt.  Jones 55 


Viii  NEW-YORK  PRACTICE  REPORTS. 

Cases  Reported. 

PACK 

Tan  Ness  agt  Nichols 119 

Van  Patten  agt  Austin 65 

Van  Schoonhoven  agt.  Comstock 175 

Van  Schoyk  agt.  Jacoby 49 

Van  Valkenburgh  agt.  Van  Alen 86 

Yarnum  agt.  Wheeler 11 

Wade  agt.  Carter 17 

Wade  agt.  Wade 7 

Wagner  agt.  Adams 191 

Waring  agt.  Mclntosh 21 

Warren  agt.  Campbell 61 

Waterman  agt.  Jones 12 

Waters  agt  Howard 40 

Watervliet  Bank  agt  Clark 144 

Watson  agt.  Morton 1 66 

Weed  agt.  Halladay 78 

Welling  agt.  Sweet 156 

Weatbrook  agt.  Merritt 195 

Wharton  agt  Barry 62 

Wilbur  agt.  Ramsay 10 

Wilcoxagt.  Moses 143 

Wilder  agt.  Wheeler 114,  136 

Wiles  agt  Hill 154 

Williams  agt  Field 214 

Willoughby  agt  Comstock 177 

Wilmarth  agt.  Gatfield 62 

Wolfe  agt.  Wynkoop 56 

Wright  agt.  Forbes 240 

Young  agt.  Arndt 227 

Young  agt  Carpenter 53 


PRACTICE   REPORTS. 


SUPREME  COURT. 

PEOPLE  ex  rel  CRANDALL  agt.  BABCOCK. 

The  admission  by  defendant  of  due  service  of  information,  does  not  authorize  the 
plaintiff  to  enter  a  default  for  want  of  a  plea  in  twenty  days,  where  by  the  rules 
the  defendant  is  entitled  to  double  time  (40  days)  to  plead. 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 

MOTION  by  defendant  to  set  aside  default  and  subsequent 
proceedings. 

Entered  by  the  relator  in  twenty  days  after  the  date  of  ad- 
mission of  the  due  service  of  the  information,  which  was  served 
through  the  post-office  on  the  defendant's  attorneys.  The  de- 
fendant's counsel  insisted  they  had  forty  days  to  plead  under 
the  rules  of  court — that  the  default  was  irregular. 

The  relator's  counsel  insisted  that  defendant's  attorneys  hav- 
ing signed  and  returned  an  admission  of  due  service  of  the 
information,  the  default  was  regular  in  being  entered  in  twenty 
days  after  the  date  of  such  due  service. 

•       BOWNE  &  CRIPPEN,  defendants  attorney. 
G.  P.  BARKER,  attorney-general,  for  relator. 

Decided,  that  the  defendant  has  double  time  to  plead  by  the 
rules,  the  admission  of  due  service,  being  nothing  more  than 
admitting  due  service  through  the  post-office,  it  cannot  take  it 
out  of  the  rule. 

Motion  granted  with  costs. 

VOL.  I.  1 


NEW-YORK  PRACTICE  REPORTS. 


Peaking  agt  EngeL 


FEAKINS  agt  ENGEL. 

Plaintiff  may  amend  his  declaration,  changing  the  venue,  on  terms,  where  the 
motion  is  made  before  the  cause  is  reached  on  the  calendar.  He  is  not  bound 
to  discontinue. 

October  Term,  1844,  NELSON,  C.  J.}  presiding. 

MOTION  to  amend  the  declaration,  by  changing  the  venue 
from  Otsego  to  Schoharie. 

The  declaration  being  for  an  action  on  the  case  for  injuries 
to  the  person.  Plaintiff's  attorney  supposing  by  a  late 
[*6J  statute  the  *action  was  transitory,  the  cause  of  action 
arising  in  the  county  of  Schoharie.  The  defendant 
pleaded  general  issue.  The  cause  was  noticed  for  trial  at  Ot- 
sego circuit,  and  before  being  reached  on  the  calendar,  plain- 
tiff's attorney  discovered  his  mistake  in  the  venue,  and  of- 
fered defendant's  attorney  costs  of  circuit  and  witnesses,  to 
allow  him  to  change  the  venue  to  Schoharie  county.  Defend- 
ant's attorney  declined  the  proposition,  and  alleged  plaintiff 
was  bound  to  discontinue  the  suit 

J.  D.  HAMMOND,  attorney  for  plaintiff. 
D.  LAWYER,  attorney  for  defendant. 

Decided,  that  motion  be  granted,  on  payment  of  costs  of  op- 
posing motion,  and  costs  of  the  plea  pleaded ;  defendant  to 
have  twenty  days  to  plead  to  amend  declaration ;  no  new  de- 
claration need  be  served. 


NEW-YORK  PEACTICE  REPORTS. 


Dayton  agt.  Vincent. 


DAYTON  agt.  VINCENT. 

It  seems,  that  where  a  rule  for  judgment  as  in  case  of  nonsuit  is  granted  on  oppo- 
sition, the  defendant  should  serve  a  copy  of  the  rule,  and  demand  his  costs ; 
otherwise  the  plaintiff  may  set  aside  the  rule  on  terms. 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 

MOTION  to  set  aside  a  rule  of  last  August  term,  granting 
judgment  as  in  case  of  nonsuit,  unless  plaintiff  stipulate  and 
pay  costs. 

Plaintiff's  facts:  Plaintiff's  attorney  was  ignorant  of  the 
conditions  of  the  rule  for  judgment  as  in  case  of  a  nonsuit, 
and  depended  on  defendant's  attorney  to  serve  a  copy,  which 
was  never  done,  and  no  costs  ever  demanded ;  he  had  always 
been  willing  to  comply  with  the  conditions  of  the  rule  ;  there 
was  a  dispute  about  the  costs  of  the  circuit ;  he  told  defend- 
ant's attorney  when  he  served  a  copy  of  the  rule,  he  was  ready 
to  comply  with  the  conditions  of  it.  Defendant's  facts :  The 
motion  in  August  was  made  on  the  usual  papers,  and  was  op- 
posed by  plaintiff's  attorney  personally,  and  motion  granted 
on  the  spot,  in  presence  and  hearing  of  plaintiff's  attorney, 
costs  were  taxed  on  regular  notice  to  plaintiff's  attorney,  and 
he  opposed  the  taxation  and  knew  the  amount  they  were 
taxed  at — after  twenty  days,  the  costs  not  being  paid,  defend- 
ant's attorney  proceeded  and  entered  judgment. 

S.  B.  NOBLE,  plaintiff s  attorney. 
GEO.  A.  SHUFELT,  defendant's  attorney. 

Decision. — That  judgment  and  all  subsequent  proceedings  be 
set  aside  on  payment  of  the  costs  defendant  was  entitled  to  by 
the  rule  of  August  last,  and  costs  of  opposing  motion,  and  $10 
costs  of  making  motion  to  stay  proceedings,  and  also  all  costs 
of  perfecting  j  udgment  of  nonsuit. 


NEW-YORK  PRACTICE  REPORTS, 


Wade  agt  Wade. 


DAYTON  agt  VINCENT. 

Plaintiff  must  stipulate  and  pay  the  costs,  where  the  defendant  haa  a  rule  to  that 
effect,  before  he  can  properly  notice  the  cause  for  trial 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 
[*7]         *MOTION  for  an  order  directing  the  clerk  of  the  cir- 
cuit New- York  to  strike  this  cause  from  the  calendar, 
and  for  a  perpetual  stay  of  proceedings  on  part  of  plaintiff. 

Facts  on  both  sides  the  same  as  in  the  last  cause,  the  cause 
having  been  noticed  for  trial  by  plaintiff 's  attorney. 

GEO.  A.  SHUFELT,  defendant's  attorney. 
S.  B.  NOBLE,  plaintiff's  attorney. 

Decision. — That  the  motion  be  granted  unless  plaintiff  in 
twenty  days  pay  to  defendant  or  his  attorney,  the  costs  de- 
fendant is  entitled  to  under  the  order  of  6th  August,  and  costs 
of  all  subsequent  proceedings  and  also  $10  costs  of  this 
motion. 


WADE  agt.  WADE. 

Where  plaintiff's  attorney  omitted  (by  mistake)  to  serve  a  copy  order  staying 
proceedings  to  prepare  and  serve  a  case,  until  judgment  had  been  entered  and 
notice  of  taxation  of  costs  given,  held,  that  he  might  have  twenty  days  for 
that  purpose,  on  payment  of  costs  of  motion  :  judgment  to  stand  as  security. 


October  jftrm,  1844,  NELSON,  G.  J.,  presiding. 

MOTION  for  leave  to  plaintiff  to  prepare  and  serve  a  case  in 
this  cause,  and  for  a  stay  of  defendant's  proceedings  until  the 
order  of  this  court  thereon. 

Facts  :  Plaintiff  's  attorney  procured  an  order  from  the  cir- 


NEW-YORK  PRACTICE  REPORTS.  7 

Learned  agt.  Betts. 

cuit  judge  next  day  after  the  trial  for  this  same  purpose,  and 
informed  defendant's  attorney  of  it,  but  did  not  serve  a  copy 
of  said  order  (by  mistake)  until  some  eight  days  afterwards, 
in  the  meantime  defendant's  attorney  had  perfected  his  judg- 
ment, and  given  notice  of  taxation  of  costs. 

G.  W.  BULKLEY,  plaintiff's  attorney. 
WM.  H.  TOBEY,  defendants  attorney. 

Decision. — Plaintiff  may  have  twenty  days  to  make  and 
serve  a  case,  and  if  done,  defendant's  proceedings  to  be  stayed 
until  the  further  order  of  this  court.  Judgment  of  defendant 
to  stand  as  security  on  payment  of  costs  of  motion. 


LEARNED  agt.  BETTS  et  al. 

Two  subpoenas  ($2.00)  and  two  attorney  and  counsel  fees  ($16.00)  on  hearing  at 
two  different  times,  stricken  out,  where  the  cause  had  but  once  been  noticed, 
and  adjourned  twice  by  consent.  «' 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 

MOTION  for  retaxation  of  defendant's  costs. 

Plaintiff  objected  before  the  taxing  officer  to  two  subpoenas 
and  two  attorney  and  counsel  fees,  on  the  ground  that  the 
cause  had  but  once  been  noticed  before  the  referee ;  it  was 
adjourned  by  consent  of  both  parties  once,  no  testimony  hav- 
ing been  taken,  and  once  by  the  referee  with  consent  of  botli 
parties,  after  the  testimony  had  been  entered  upon. 

Defendants  offered  to  prove  before  the  taxing  officer,  that 
the  subpoenas  and  tickets  were  actually  made  as  charged  in 
the  bill  and  objected  to  by  plaintiff,  that  plaintiff's  at- 
torney did  not  question  the  fact,  but  rested  *his  objec-      [*8] 
tion  solely  on  the  ground  they  were  not  taxable.     First 
adjournment  was  on  application  of  plaintiff's  attorney. 


8  NEW-YORK  PRACTICE  REPORTS. 

Green  agt.  Russell. 

J.  A.  MILLARD,  plaintiff's  attorney. 
A.  K.  HADLEY,  defendants1  attorney. 

Decision. — That  two  subpoenas  $2,  and  two  attorney  and 
counsel  fees  on  hearing  at  two  different  times  $16,  be  stricken 
out  of  said  bill. 


BURTON  agt.  TEMPLE. 

A  defendant  cannot  be  held  to  bail  in  an  action  of  tort,  where  it  appears  that  he 
is  a  householder  and  freeholder  residing  in  the  county. 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 

MOTION  to  vacate  an  order  of  supreme  court  commissioner, 
holding  defendant  to  bail  and  for  his  discharge  from  arrest. 

Facts :  The  ac  etiam  clause  in  the  capias  was  for  trespass, 
assault  and  battery,  and  on  an  affidavit  of  plaintiff  stating  the 
facts,  an  order  was  indorsed  on  capias  holding  defendant  to 
bail ;  the  defendant  is  a  householder  and  a  freeholder  residing 
in  the  city  of  Albany  where  the  order  to  hold  to  bail  was 
granted. 

CAGGER  &  STEVENS,  defendant's  attorneys. 
JOHN  I.  BURTON,  attorney  in  propria  persona. 

Decision. — Motion  granted  with  costs. 


GREEN  agt.  RUSSELL. 

If  the  defendant  elects  that  he  will  abide  by  a  ca.se,  instead  of  a  bill  of  excep- 
tions, on  the  settlement  by  the  circuit  judge,  he  cannot  be  permitted  after- 
wards  to  turn  it  into  a  bill  of  exceptions,  without  leave  of  the  plaintiff. 


NEW-YORK  PRACTICE  REPORTS.  8 

Green  agt.  Russell. 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 

MOTION  to  change  the  case  settled  in  this  cause  into  a  bill 
of  exceptions  for  the  purpose  of  carrying  the  cause  to  the 
court  of  errors. 

Defendant's  facts :  Cause  was  once  tried,  and  theevidenc  e 
offered  by  defendant  was  ruled  by  the  circuit  judge  as  in- 
sufficient, a  case  was  made,  and  new  trial  ordered  by  this 
court ;  on  the  second  trial  the  same  evidence  was  offered,  and 
again  decided  insufficient  by  the  circuit  judge,  upon  which  a 
stipulation  was  obtained  to  make  a  case  or  bill  of  exceptions, 
and  defendant  again  moved  for  a  new  trial,  which  was  denied 
by  this  court,  on  a  case  made  and  settled  by  the  circuit  judge, 
after  having  been  denied  by  the  circuit  judge,  which  case  was 
drawn  as  a  bill  of  exceptions,  except  the  concluding  part,  and 
was  intended  to  have  been  turned  into  a  bill  of  exceptions  by 
defendant,  if  plaintiff  would  consent,  which  he  declined  doing ; 
it  was  urged  on  the  settlement  of  the  case  by  defendant's 
attorneys,  that  the  circuit  judge  should  settle  it  as  a  bill  of 
exceptions,  which  the  judge  declined  doing  without  the  con- 
sent of  plaintiff's  attorney,  who  was  not  present.  Plain- 
tiff's facts:  Plaintiff  states  that  the  circuit  judge  on  the 
trial  gave  defendant  liberty  to  give  such  facts  of 
the  evidence  offered  *as  went  to  contradict  or  ex-  [*9] 
plain  the  acts  of  affirmance  proved  by  plaintiff,  and 
any  other  evidence  which  would  go  to  prove  or  explain  such 
proof  of  plaintiff.  Plaintiff's  attorney  refused  to  sign  a  stipu- 
lation that  defendant  might  at  any  time  thereafter  turn  the  case 
into  a  bill  of  exceptions,  but  gave  the  defendant  liberty  to 
take  a  bill  of  exceptions  or  a  case,  after  the  same  had  been 
settled  by  the  circuit  judge  as  a  case,  if  he  would  do  it  then, 
but  defendant's  attorney  refused,  and  said  he  would  abide  by 
the  case. 

BENNETT  &  PRITCHARD,  defendants'  attorneys. 
J.  RUGER,  plaintiff's  attorney. 

Decision. — Motion  denied  with  costs. 


NEW-YORK  PRACTICE  REPORTS. 


Delehanty  agt  Hoffman. 


DELEHANTY  agt.  HOFFMAN. 

Where  the  defendant  obtains  an  order  setting  aside  an  inquest  on  payment  of 
coats,  Ac.,  but  mistaking  the  practice  in  supposing  the  plaintiff  must  make 
a  personal  demand  for  the  costs,  and  the  plaintiff  goes  on  and  enters  judg- 
ment, the  defendant,  to  avail  himself  of  his  rule,  must  bring  the  amount  of 
judgment  into  court,  pay  all  costs,  and  take  short  notice  of  trial. 

October  Term,  1844,  NELSON,  C.  J.,  presiding 
DEFENDANT  moved  at  June  special  term  last,  and  took  a 
rule  by  default  setting  aside  the  inquest  taken  in  this  cause, 
with  costs. 

August  special  term,  plaintiff  made  a  motion  to  open  the 
default,  which  was  granted,  and  the  original  motion  of  de- 
fendant to  set  aside  the  inquest  was  argued  and  granted  upon 
payment  of  costs  of  the  regular  proceedings ;  copy  rule  and 
notice  was  served  on  defendant's  attorney  previous  to  the  2d 
September,  during  his  absence.  Defendant's  attorney  mis- 
taking the  practice,  supposed  plaintiff's  attorneys  must  make 
a  personal  demand  for  the  costs  under  said  rule,  and  did  not 
discover  the  mistake  until  the  27th  September;  he  imme- 
diately wrote  to  plaintiff's  attorneys,  stating  in  what  manner 
he  was  mistaken  in  the  practice,  and  offered  to  pay  said  costs 
and  go  to  trial,  which  plaintiff's  attorneys  declined  doing. 
Defendant  swears  to  merits. 

E.  HOFFMAN,  defendant 's  attorney. 
HAMMOND  &  DOOLITTLE,  plaintiff's  attorneys. 

Decision. — Ordered  that  the  motion  for  leave  for  defendant 
to  avail  himself  of  the  rule  entered  in  August  last,  be  denied, 
unless  defendant  within  ten  days  bring  into  court  the 
amount  of  the  judgment  and  interest,  and  pay  to  plaintiff's 
attorneys  the  cost  of  inquest  and  all  subsequent  proceedings, 
and  take  seven  days'  notice  of  trial,  and  pay  costs  of  opposing 
motion. 


NEW-YORK  PRACTICE  REPORTS.  l(J 

•  Wilbur  agt.  Ramsey. 


SERGEANTS  agt.  BAKER. 

Plaintiff  not  bound  to  notice  cause  for  trial  after  stipulation,  where  defendant 
omitted  to  jlead,  so  that  a  return  to  the  certiorari,  bringing  the  cause  from 
the  common  pleas,  could  be  filed  in  season  for  the  circuit. 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 

^DEFENDANT  moves  for  judgment  as  in  case  of  non-     [*10] 
suit,  upon  the  usual  affidavit  after  a  stipulation  by 
plaintiff. 

Plaintiff  states  that  the  defendant  brought  a  writ  of  cer- 
tiorari and  removed  this  cause  from  the  common  pleas,  where 
it  was  originally  commenced ;  that  before  and  at  the  time  the 
circuit  was  held  for  which  he  had  stipulated  to  try  said  cause, 
he  ascertained  that  no  return  had  been  made  by  the  clerk  of 
the  county  to  said  writ,  in  consequence  of  a  plea  not  having 
been  filed  by  defendant,  which  was  the  reason  plaintiff  did 
not  notice  and  try  said  cause,  in  pursuance  of  said  stipulation. 

S.  CRIPPEN,  defendants  attorney. 
ELIJAH  BROWN,  plaintiff's  attorney. 

Motion  denied,  without  costs. 


WILBUR  agt.  EAMSEY. 

The  ordinary  order  indorsed  on  a  writ  of  error,  staying  proceedings  on  the 
judgment  and  exception,  &c.,  for  the  purpose  of  removing  a  cause  by  writ  of 
error,  is  not  sufficient.  A  proper  "  allowance"  of  the  writ  should  be  indorsed. 

October  Term,  1844,  NELSON,  C.  «/.,  presiding. 

MOTION  by  defendant  in  error  to  quash  or  supersede  the 
writ  of  error  in  this  cause. 

The  ground  set  forth  (among  others)  upon  which  the  mo- 
tion was  decided,  was;  that  there  was  no  allowance  of  the 


10  NEW-YORK  PRACTICE  REPORTS. 

^ 

Johnson  agt  Anthony. 

writ,  the  indorsement  on  the  writ  was  as  follows :  "  Let  all 
proceedings  on  the  execution  issued  on  the  judgment  within 
mentioned,  and  all  proceedings  upon  such  judgment  be  stayed 
until  judgment  on  the  within  writ  of  error,"  the  word  "aZ- 
loiced"  not  being  on  the  writ. 

BOCKES  &  NASH,  defendant's  attorneys. 
JOHN  C.  HULBERT,  plalnUff's  attorney. 

Decision. — Ordered  that  motion  be  granted,  unless  within 
twenty  days  plaintiff  in  error  procure  the  proper  allowance 
to  be  indorsed  on  the  writ  of  error  filed  with  the  clerk  of  the 
county,  and  pay  cests  of  motion. 


JOHNSON  agt.  ANTHONY. 

Execution  stayed,  and  defendant  allowed  to  plead  his  discharge  in  bankruptcy, 
on  payment  of  all  costs  subsequent  to  verdict  and  of  opposing  motion ;  where 
verdict  and  judgment  rendered  after  his  discharge,  upon  a  note  given  pre- 
viously. 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 
MOTION  to  vacate  execution  and  to  discharge  the  judgment 
Defendant's  facts :  That  he  presented  his  petition  for  a  dis- 
charge under  the  bankrupt  act  before  the  trial  and  verdict  in 
this  cause,  and  obtained  his  discharge  after  verdict,  (this  suit 
being  on  a  promissory  note,)  was  declared  a  bankrupt  July  8, 
1842,  got  his  discharge  November  17,  1842,  judgment  was 
docketed  February  8,  1843,  execution  issued  and  tested  20th 
June,  1844,  levy  made  on  property  assigned  by  defendant 
under  the  bankrupt  act,  and  sale  advertised.     Plaintiff's  facts : 
An  execution  was  issued  in  this  cause  on  or  about  5th 
[*11]     *  April,  1843.     Defendant  knew  of  the  execution,  and 
did  not  make  any  motion  to  set  aside  or  stay  it ;  and 
that  defendant's  discharge  was  fraudulently   obtained,  and 
plaintiff  intends  to  contest  it  by  selling  the  real  estate  ad- 
vertised on  the  execution. 


NEW-YORK  PRACTICE  REPORTS.  11 

Varnum  agt.  Wheeler. 

C.  F.  INGALLS,  defendants  attorney. 
J.  A.  MILLARD,  plaintiff's  attorney. 

Decision. — Ordered  that  the  execution  be  stayed,  and  that 
defendant  be  allowed  to  plead  his  discharge  in  bankruptcy  on 
paying  all  costs  subsequent  to  verdict,  and  costs  of  opposing 
motion.  Judgment  herein  to  stand  as  security. 


VARNUM  agt.  WHEELER. 

Default  for  not  rejoining  to  plaintiffs  replications,  opened  on  terms,  and  allowing 
amended  special  pleas  served,  to  stand,  where  there  was  a  misunderstanding 
in  relation  to  a  stipulation  between  the  attorneys. 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 

MOTION  to  set  aside  the  default  of  defendant  Wheeler,  for 
not  rejoining  to  plaintiff's  replications,  and  directing  the  plain- 
tiff's attorney  to  receive  the  special  pleas,  filed  and  served,  or 
allowing  defendant's  attorney  to  amend  his  special  pleas. 

Defendant's  facts:  That  a  stipulation  was  signed  by  plaintiff's 
attorney  (being  drawn  by  defendant's  attorney),  after  the  spe- 
cial pleas  had  been  served,  and  after  replications  by  plaintiff's 
attorney  to  said  pleas ;  giving  the  defendant's  attorney  a  lim- 
ited time  to  rejoin  to  said  replications,  or  to  amend  his  special 
pleas:  that  defendant's  attorney  took  the  same  stipulation, 
when  the  time  had  nearly  elapsed,  to  plaintiff's  attorney,  for 
an  extension  one  day  longer ;  that  plaintiff's  attorney  signed 
it  for  the  further  time,  but  struck  out  the  words  "or  to  amend 
his  special  pleas,"  which  was  interlined  in  the  stipulation,  say- 
ing they  were  not  in  it  when  he  first  signed  it.  Defendant's 
attorney  shows  by  his  affidavit  positively,  that  the  words  so 
stricken  out  and  interlined  were  in  the  stipulation  when  plain- 
tiff's attorney  first  signed  the  same,  and  that  the  amended 
pleas  were  served  in  time.  Plaintiffs  facts :  Plaintiff's  attor- 


11  XEW-YORK  PRACTICE  REPORTS. 

Waterman  agt  Jones. 

ney  signed  the  stipulation  the  first  time,  after  hastily  looking 
it  over,  but  did  not  see  or  know  of  any  such  words  being  in 
it,  giving  the  defendant's  attorney  leave  to  amend  his  special 
pleas,  otherwise  he  should  have  refused  to  sign  it.  After  the 
time  for  rejoining  to  the  replication,  he  entered  his  default, 
and  noticed  the  cause  for  trial  on  the  general  issue. 

0.  F.  THOMPSON,  defendant' s  attorney. 
B.  F.  AGAN,  plaintiff 's  attorney. 

Decision. — Ordered    that    default    be    opened ;    that    the 
amended  pleas  served  stand.     The  plaintiff  has  twenty 
[*12]     days  to  reply  or  demur,  upon  "^defendant's  paying  costs 
of  opposing  motion,  and  all  costs  of  putting  in  repli- 
cations, together  with  costs  of  default  and  subsequent  pro- 
ceedings of  plaintiff's  to  the  time  of  service  of  order  staying 
proceedings. 


WATERMAN  &  BRADLEY  agt.  JONES. 

Where  judgment  of  nan  proe.  was  obtained  in  1818,  and  test.  ca.  sa.  issued  re 
turnable  May,  1819,  and  nothing  further  done  until  1844,  a  declaration  was 
served,  to  which  was  annexed  a  copy  rule  setting  aside  defendant's  judgment 
of  ncm  pros.  May,  1819.  The  defendant  was  allowed  an  order  setting  aside 
the  latter  rule,  and  all  proceedings  on  the  part  of  plaintiff. 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 

MOTION  by  defendant  to  vacate  or  annul  the  rule  or  order 
setting  aside  the  judgment  of  non.  pros,  entered  in  this  cause 
on  the  15th  May,  1819,  and  to  set  aside  all  proceedings  on  the 
part  of  plaintiff's  subsequent  to  said  rule. 

Defendant's  facts :  This  suit  was  commenced  by  the  plain- 
tiffs, against  the  defendant,  about  the  year  1817  or  1818,  and 
the  only  one  ever  commenced  by  said  plaintiffs  against  de- 
fendant; that  defendant's  then  attorney  proceeded  in  said 


NEW-YORK  PRACTICE  REPORTS.  12 

Kingston  Bank  agt.  Swift. 

cause,  and  got  a  judgment  of  non.  pros,  against  plaintiffs, 
December,  26,  1818,  and  issued  test.  ca.  sa.  returnable  first 
Monday  of  May,  1819 ;  that  defendant  supposed  the  matter 
was  ended,  and  never  heard  anything  more  from  it  until  July, 
1844,  he  was  served  with  a  notice  signed  by  plaintiffs'  attor- 
ney in  said  cause,  requiring  him  to  appoint  an  attorney  for 
himself  in  said  suit  in  place  of  W.  W.  Bowen,'  Esq.,  now 
dead,  who  was  his  attorney  originally.  After  serving  a 
notice  upon  plaintiffs'  attorney  that  he  had  appointed  another 
attorney,  he  received  a  declaration  in  said  cause,  to  which  was 
attached  a  copy  rule,  dated  15th  May,  1819,  setting  aside  de- 
fendant's judgment  of  non  pros,  and  all  subsequent  proceed- 
ings with  costs.  Plaintiffs'  facts :  That  plaintiffs'  attorney  first 
knew  of  this  cause  in  the  month  of  April,  1819  when  plain- 
tiff Bradley  applied  to  him  to  set  aside  the  ca.  sa.  issued  in 
said  cause ;  that  he  drew  up  the  papers  and  served  them,  and 
procured  the  said  rule  of  15th  May,  1819 ;  that  no  proceed- 
ings were  had  in  said  cause  afterwards,  until  the  above  men- 
tioned by  defendant. 

D.  M.  CHAPIN,  defendant's  attorney. 
L.  FORD,  plaintiffs1  attorney. 

Decision. — Motion  granted  without  costs  to  either  party. 


KINGSTON  BANK  agt.  SWIFT  et  al. 

Where  plaintiffs,  in  a  suit  upon  a  promissory  note  against  several  defendants, 
took  a  bond  from  part  of  the  defendants  who  claimed  to  be  collateral  sureties 
only,  and  agreed  to  endeavor  to  get  pay  of  the  other  defendants,  and  assigned 
the  bond  and  took  the  notes  of  the  assignees  as  collateral  security  for  the  ori- 
ginal note  in  suit ;  and  upon  the  assignees'  notes,  plaintifls  recovered  judg- 
ment, and  then  transferred  the  bond  and  the  original  note  to  the  assignees  for 
their  security ;  held,  on  a  motion  by  defendants,  who  gave  the  bond,  for  the 


12  NEW-YORK  PRACTICE  REPORTS. 

Kingston  Bank  agt  Swift 

discontinuance  of  the  original  suit,  that  the  defendants  might  have  leave  to 
plead  puit  darien,  any  matters  which  arose  after  the  commencement  of  the 
original  suit,  and  plaintiff's  leave  to  reply. 


October  Term,  1844,  NELSON,  C.  «7.,  presiding. 

MOTION  to  discontinue  this  suit. 

Defendants'  facts :  This  suit  was  commenced  in  January, 
1838,  upon  a  promissory  note,  against  all  the  defendants  eight 
in  number,  as  makers  and  indorsers,  the  makers  and  payees  of 
said  note  beiug  the  four  defendants  in  this  motion.  They 
pleaded  in  said  suit  general  issue  and  notice  of  set-off, 
f*13]  and  gave  notice  to  plaintiffs  that  they  *must  prove  on 
the  trial  the  consideration  for  which  the  note  was  ob- 
tained ;  that  they  stood  as  collateral  sureties  to  the  bank,  the 
other  defendants  being  about  to  pay  the  same.  Said  bank 
agreed  in  effect  to  settle  and  discontinue  said  suit  against  them, 
on  their  giving  a  bond  for  the  amount  of  the  note,  interest  and 
costs ;  it  being  understood  that  said  suit  was  not  to  be  discon- 
tinued on  the  records,  or  the  said  note  given  up,  for  it  might 
injure  the  claim  of  the  bank.  That  three  of  the  said  defend- 
ants (the  other  residing  out  of  the  state)  waived  their  legal 
defences  (as  the  bank  claimed  to  be  bona  fide  holders  without 
notice),  and  executed  said  bond  on  aforesaid  conditions,  and 
no  other.  Defendants  considered  said  suit  settled.  The  bank 
agreed  to  endeavor  to  get  pay  of  the  other  defendants ;  and  if 
they  did,  they  would  not  have  recourse  to  the  bond  given  by 
defendants,  but  would  give  it  up.  It  appeared  that  said  bond 
was  assigned  on  the  25th  May,  1842  ;  that  a  suit  on  the  bond 
was  commenced  on  the  26th  October,  1842,  by  the  assignees ; 
and  two  of  the  defendants  aforesaid  appeared  in  the  suit  (the 
other  not  having  been  served  with  process),  and  pleaded  non 
estfactum  arid  notice,  in  which  notice  defendants  set  forth  sub- 
stantially the  above  facts,  and  alleged  in  said  notice  that  the 
hank  received  pay  and  satisfaction  of  the  indebtedness  from 
the  assignees  of  said  bond  and  the  other  parties  to  said  note ; 
that  the  suit  on  the  bond  was  never  brought  to  trial,  but  was 
discontinued,  and  defendants'  taxable  costs  paid.  On  the  6th 


NEW-YORK  PRACTICE  REPORTS.  13 

Kingston  Bank  agt.  Swift. 

of  June,  1844,  defendants'  attorney  received  notice  of  substi- 
tution of  another  attorney  for  plaintiffs,  and  a  notice  of  trial 
on  the  original  sjiit  brought  upon  the  note.  Plaintiffs'  facts  : 
After  the  suit  on  the  bond  was  at  issue,  and  the  plaintiffs 
learning  the  nature  of  defendants'  defence,  by  their  notice 
which  was  pleaded  to  said  suit  on  the  bond,  and  after  a  full 
statement  of  facts  to  the  counsel  for  plaintiffs  on  their  part, 
plaintiffs  were  advised  that  the  suit  on  the  bond  could  not  be 
maintained,  but  that  they  could  successfully  prosecute  to  a 
conclusion  the  above  suit  commenced  on  the  note.  Thereupon 
the  suit  on  the  bond  was  discontinued,  and  the  further  prose- 
cution of  this  suit  undertaken.  It  appears  also  on  the  part  of 
the  plaintiffs,  that  the  assignees  of  said  bond  had  given  two 
notes  to  the  plaintiffs  as  collateral  security  for  the  note  in  this 
suit ;  or  that  said  two  notes  were  turned  out  to  said  plaintiffs 
by  one  Wilbur,  for  whose  benefit  the  indebtedness  accrued, 
and  were  considered  accommodation  notes ;  that  the  assignees 
of  said  bond  were  sued  on  said  two  notes  in  separate  suits ; 
and  on  the  trials,  it  was  proven  that  this  suit  was  not  discon- 
tinued, nor  any  agreement  made  for  the  discontinuance  thereof. 
Plaintiffs  obtained  judgment  on  said  two  promissory  notes, 
and  interest  against  the  assignees  of  said  bond.  On  a  sub- 
sequent settlement  between  plaintiffs  and  assignees,  it 
was  agreed  that  *said  plaintiffs  should  transfer  the  [*14] 
bond  aforesaid  to  said  assignees,  and  the  note  on  which 
this  suit  is  commenced,  and  also  the  suit  to  be  prosecuted  for 
the  benefit  of  said  assignees ;  and  said  transfers  were  made 
accordingly  on  being  indemnified  by  the  assignees  against  ex- 
penses and  costs  of  this  suit,  which  was  also  done.  The  same 
is  now  prosecuted  for  the  benefit  of  said  assignees,  they  hav- 
ing been  compelled  to  pay  the  amount  of  said  note  to  plaintiffs. 
The  assignees  allege  that  no  agreement  was  ever  made  by  said 
plaintiffs,  or  any  one  on  their  behalf,  for  the  discontinuance  oi 
this  suit.  Assignees  also  allege  that  they  expect  to  prove  on 
the  trial  of  this  cause,  that  the  note  on  which  this  suit  is  brought 
is  a  business  note ;  that  defendants  ought  to  pay  the  same. 


14  NEW-YORK  PRACTICE  REPORTS. 

Corning  agt  Tripp. 

J.  W.  GERARD,  attorney  for  four  defendants. 
H.  E.  DAVIES,  plaintiffs'  attorney. 

Decision. — Ordered  that  defendants  have  leave  to  plead  puts 
darien  any  matters  which  have  arisen  since  the  commencement 
of  this  suit,  and  that  plaintiffs  have  leave  to  reply  to  same ; 
and  further  ordered  that  the  venue  be  changed  to  the  city  and 
county  of  New- York.  Costs  of  motion  to  abide  event  of  suit 


CORNING  &  HORNER  agt.  TRIPP. 

"Where  plaintiffs  entered  judgment  by  default,  the  plea  having  been  served  one 
day  too  late,  defendant  swore  to  merits  fully,  giving  particulars;  the  plaintiff 
showing  regularity  on  his  part,  and  that  defendant  was  alleged  to  be  in  doubt- 
ful circumstances.  Defendant  let  in  on  terms:  judgment  and  execution  to 
stand  as  security. 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 

MOTION  to  set  aside  judgment  and  default,  and  that  defend- 
ant be  permitted  to  come  in  and  defend. 

Defendant's  facts :  Declaration  served  on  defendant  on  the 
22d  July,  1844,  containing  common  money  counts.  Defend- 
ant's attorney,  on  the  7th  August,  1844,  inclosed  a  plea  of 
general  issue,  statute  of  limitations  and  notice  of  set-off,  in  an 
envelope,  and  directed  the  same  to  the  clerk  of  the  supreme 
court,  Geneva,  New- York,  with  directions  to  serve  the  same 
upon  the  agent  of  plaintiffs'  attorney.  He  put  same  in  post- 
office  at  Randolph,  Cattaraugus  county,  New- York,  and  paid 
postage  thereon.  In  the  ordinary  course  of  mail,  it  would 
have  reached  the  clerk  on  the  9th  August,  1844 :  same  was 
not  received  by  said  clerk  until  14th  August,  1844.  On  the 
18th  of  August,  1844,  judgment  was  entered  for  plaintiffs  by 
default.  Defendant's  attorney  would  have  mailed  said  pleas 
directly  to  plaintiffs'  attorney  at  Albany,  had  he  supposed 
there  was  not  time  for  it  to  have  reached  the  clerk  at  Geneva. 


NEW-YORK  PRACTICE  REPORTS.  14 

Corning  agt.  Tripp. 

Defendant  has  a  full  affidavit  of  merits,  and  gives  particular 
causes  and  grounds  for  defence :  one  is,  that  the  same  debt 
has  been  paid  by  him,  by  conveying  property  real  and  per- 
sonal to  plaintiffs'  agent  or  attorney,  for  plaintiffs,  on  a  suit 
then  brought  against  him  by  plaintiffs  for  the  same 
indebtedness.  *That  plaintiffs  have  not  given  him  [*15] 
credit  for  $30  paid  on  the  26th  September,  1836,  and 
other  specifications.  Plaintiffs'  facts :  The  declaration  was 
served  on  the  22d  July,  1844 ;  pleas  and  notice  served  on 
clerk  at  Geneva,  August  14th,  1844 ;  returned  by  plaintiffs' 
attorney  to  defendant's  attorney,  August  19th,  1844 ;  judg- 
ment entered  13th  August,  1844 ;  execution  issued  and  tested 
13th  September,  1844 :  the  circuit  where  the  venue  is  laid  is 
on  the  9th  October,  1844.  The  sum  of  $30  stated  by  defend- 
ant  was  credited  to  defendant  on  plaintiffs'  books,  and  deducted 
from  the  judgment.  Defendant  left  this  state,  and  was  said 
to  have  gone  to  some  of  the  western  states,  in  the  year  1837, 
and  returned  to  this  state  about  a  year  ago.  Plaintiffs  allege 
he  is  in  doubtful  circumstances. 

C.  TUCKER,  defendants  attorney. 
W.  D.  WHITE,  plaintiffs'  attorney. 

• 

Decision. — Motion  granted  on  payment  of  costs  of  default 
and  costs  of  opposing  motion.    Judgment  and  execution  to 
stand  as  security,  and  cause  referred. 
VOL.  I.  2 


15  NEW-YORK  PRACTICE  REPORTS. 

Steer  agt.  Head. 


LEGATE  agt.  LAGRILLE. 

Where  defendant  appears,  he  waives  the  irregularity  of  the  issuing  the  writ  with- 
out a  clerk's  name  to  it 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 

MOTION  to  set  aside  writ  of  replevin  for  irregularity. 

On  the  ground  of  there  not  being  added  or  affixed  to  the 
said  writ,  the  names  of  the  clerks  of  this  court,  or  any  or  either 
one  of  said  clerks.  Defendant's  facts :  Show  that  the  writ  was 
returned  and  filed  without  the  names  of  the  clerks  of  this  court 
or  any  one  of  them  being  affixed  thereto.  Plaintiff's  facts: 
After  the  execution  of  said  writ  (and  before  the  same  was  filed), 
plaintiff 's  attorneys  received  a  written  notice  of  retainer  from 
defendant's  attorney,  for  defendant  in  this  cause;  that  the 
word  "  clerk,"  is  affixed  to  said  writ ;  that  defendant  was  not 
arrested  on  said  writ,  nor  any  bail  given  or  required.  Defend- 
ant's appearance  has  been  entered  nunc  pro  tune,  as  of  the  day 
of  service  of  notice  of  retainer. 

SAMUEL  F.  REYNOLDS,  defendants  attorney. 
WARD  &  IIOCKWOOV,  plaintiff's  attorneys. 

Decision. — Motion  denied  with  costs. 


STEER  agt.  HEAD. 

Facts  and  circumstances  upon  which  defendant  was  allowed  to  come  in  and  de- 
fend after  default,  by  reason  of  not  having  sworn  to  the  truth  of  his  plea. 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 
MOTION  to  set  aside  default  and  subsequent  proceedings  for 
irregularity. 


NEW- YORK  PRACTICE  REPORTS.  16 

Steer  agt.  Head. 

Defendant's  facts  :  This  is  an  action  of  debt  on  bond. 
Defendant  claims  the  *same  to  be  paid,  except  about  [*16] 
$32,  which  was  tendered  before  suit  brought.  Defend- 
ant's attorney  caused  a  plea  to  be  served  in  time,  according  to 
the  practice  of  this  court.  His  clerk  neglected  to  attach  the 
affidavit  of  defendant,  to  verify  the  plea  (which  he  had  ob- 
tained), to  the  plea,  at  the  time  of  service  on  said  plaintiff's 
attorneys.  One  of  plaintiff's  attorneys  informed  the  clerk  of 
defendant's  attorney,  that  the  plea  was  received  by  mail  in  due 
season  ;  but  there  was  no  affidavit  of  the  truth  of  the  plea,  nor 
any  affidavit  of  merits  served  with  said  plea;  that  plaintiff's 
attorney  did  not  return  the  plea  or  inform  defendant's  attorney 
of  any  irregularity  respecting  it,  but  said  he  treated  it  as  a 
nullity.  The  first  knowledge  defendant's  attorney  had  of 
plaintiff's  attorneys'  intention  to  treat  the  plea  as  a  nullity, 
was  the  service  of  a  bill  of  costs,  with  notice  of  retaxation. 
Defendant's  attorney  offered  to  pay  plaintiff's  attorneys  the 
costs  of  default  and  subsequent  proceedings  (rather  than  make 
a  motion)  to  let  the  plea  stand,  and  waited  for  an  answer  until 
it  was  too  late  to  move  at  an  earlier  day,  the  plea  having  been 
served  early  in  July  last.  Plaintiff's  facts :  Accompanying  the 
declaration  served  on  defendant  on  the  first  of  June  last,  was 
a  copy  bond,  with  notice  that  said  bond  was  the  only  cause  of 
action  in  this  cause.  The  time  for  pleading  was  extended  for 
defendant's  attorneys'  accommodation,  until  some  time  in  July 
last.  On  the  8th  of  July  last,  a  letter  was  left  by  a  person,  a 
stranger  to  plaintiff's  attorneys,  in  their  office,  who  immedi- 
ately left  before  plaintiff's  attorneys  opened  said  letter.  On 
opening  the  letter,  it  was  found  to  be  a  blank  envelope  cover- 
ing the  pleas  in  said  cause,  consisting  of  two  special  pleas  of 
tender,  one  concluding  to  the  country,  and  the  other  with  a 
verification,  without  any  affidavit  of  merits  or  of  the  truth  of 
either.  The  next  day,  9th  of  July,  after  said  pleas  were  served, 
plaintiff's  attorneys  wrote  to  the  clerk  and  law  partner  of  de- 
fendant's attorney,  (believing  defendant's  attorney  to  be  absent 
from  home,)  and  forwarded  the  same  to  him  by  mail,  postage 
paid,  stating  in  substance  that  plaintiff's  attorneys  could  not 


16  NEW-YORK  PRACTICE  REPORTS. 

Wade  agt.  Carter. 

accept  said  pleas,  for  the  reason  that  no  affidavit  of  the  truth 
thereof  accompanied  the  same.  On  the  15th  of  July  last 
plaintiff's  attorney  entered  default,  and  on  the  18th  perfected 
judgment.  The  clerk  of  the  defendant's  attorney  stated  to  one 
of  plaintiff 's  attorneys,  that  he  received  the  letter  addressed  to 
him  as  aforesaid.  Plaintiff 's  attorney  told  him  he  had  not, 
and  could  not  inform  defendant's  attorney  of  the  objection  to 
the  acceptance  of  said  pleas,  by  reason  of  the  absence  of  de- 
fendant's attorney,  but  supposed  it  sufficient  to  give  him  (the 

said  clerk)  the  information.  Plaintiff's  attorney  denies 
[*17]  *stating  that  the  pleas  were  received  by  mail,  for  they 

were  not.  It  was  the  mail  carrier  that  delivered  them. 
Plaintiff's  attorneys  admit  the  offer  of  defendant's  attorney  to 
pay  costs  of  default  and  subsequent  proceedings,  to  have  de- 
fault waived,  but  he  did  not  offer  to  verify  the  pleas  or  either 
of  them  by  affidavit. 

L.  S.  CHATFIELD,  defendant's  attorney. 
BOWNE  &  CRIPPEN,  plaintiff's  attorneys. 

Decision. — Default  and  all  subsequent  proceedings  set  aside 
on  payment  of  costs  thereof,  and  of  opposing  motion,  judg- 
ment to  stand  as  security  and  cause  referred. 


WADE  agt.  CARTER  et  al. 

Where  plaintiff's  counsel  took  a  rule  by  default,  which  was  opened  by  the  court, 
on  same  day,  and  ho  was  immediately  notified  of  that  fact,  and  that  defend- 
ant's  counsel  desired  to  oppose  the  motion,  and  plaintiffs  counsel  refused  to 
bring  it  on,  defendants'  counsel  was  allowed  to  take  a  rule  for  coats  at  the 
close  of  the  term. 

October  Term,  1844,  NELSON,  C. «/".,  presiding. 
This  was  a  motion  for  a  commission  and  rule  taken  by  de- 
fault, by  plaintiff 's  counsel. 


NEW-YORK  PRACTICE  REPORTS.  If 

Clark  agt.  Rawson. 

Defendant's  counsel,  immediately  on  learning  the  fact  (the 
plaintiff's  counsel  not  being  found),  applied  to  the  court  to 
open  the  default ;  stating  that  plaintiff's  counsel  was  informed 
soon  after  he  took  the  default,  that  defendants  wished  to  op- 
pose the  motion.  The  court  ordered  the  default  opened,  and 
immediate  notice  given  to  plaintiff's  counsel,  and  if  plaintiff's 
counsel  did  not  get  such  notice  in  season  to  bring  on  the  argu- 
ment at  this  term,  that  the  motion  stand  over  to  next  special 
term ;  at  the  close  of  the  term  (last  day),  defendants'  counsel 
moved  for  costs  against  plaintiff,  for  not  bringing  on  the  mo- 
tion, stating  that  on  the  same  day  the  default  was  opened,  he 
informed  plaintiff's  counsel,  personally,  who  was  then  in  Al- 
bany, that  the  default  was  opened,  and  that  he  wished  to  op- 
pose the  motion  (which  was  two  days  before  the  term  closed), 
plaintiff's  counsel  refused  to  bring  it  on. 

G.  BULKLEY,  plaintiffs  attorney. 

A.  D.  L.  WHIPPLE,  defendants'  attorney. 

Decision. — Motion  for  costs  against  plaintiff,  granted. 


CLARK  agt.  RAWSON. 

Facts  and  circumstances  upon  which  defendant  in  error  was  allowed  to  have  a 
default  and  judgment  for  not  joining  in  error,  opened. 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 

MOTION  to  set  aside  writ  of  error,  and  subsequent  pro- 
ceedings. 

Defendant's  facts :  Defendant,  in  December  last,  recovered  a 
judgment  on  the  reversal  of  a  justice's  judgment  in  the  common 
pleas,  against  said  plaintiff,  and  one  Hinds,  then  his  partner, 
living ;  afterwards  a  writ  of  error  was  brought  to  the 
common  pleas  from  this  court;  and  notice  ^thereof  [*18] 
served  on  defendant's  attorney,  30th  December  last, 


18  NEW-YORK  PRACTICE  REPORTS. 

Clark  agt.  Rawaon. 

who,  on  the  2d  January  last,  caused  notice  of  retainer  to  be 
served  on  plaintiff's  attorney  by  mail,  that  defendant  or  his 
attorney  heard  nothing  more  of  said  suit  until  August  last, 
when  they  learned  an  execution  was  in  sheriff's  hands,  to  col- 
lect $20  costs  of  reversal  in  this  court,  which  appeared  by  the 
execution  to  have  been  done  26th  February  last ;  defendant 
swears  to  merits,  and  alleges  he  has  been  overreached  in  this 
matter  in  some  way  unknown  to  him,  as  no  notice  of  argu- 
ment has  ever  been  served  on  defendant  or  his  attorney ;  de- 
fendant would  have  moved  before,  but  for  the  absence  of  a 
material  witness,  who  returned  13th  September  last,  by  which 
he  should  prove  notice  of  a  retainer  served  on  plaintiff's  attor- 
ney. Defendant's  attorney,  on  inquiring  of  the  clerk  of  the 
county  and  his  deputy,  learns  that  no  writ  of  error,  certificate 
of  a  judge  or  bond,  has  ever  been  served  on  either  of  them, 
that  they  have  not  made  any  return  to  any  writ  of  error,  in 
any  such  cause  to  this  court.  Defendant's  attorney  has  never 
received  any  notice  of  argument  from  plaintiff's  attorney,  in 
said  suit  Defendant's  attorney  believes  plaintiff's  attorney 
has  never  procured  a  certificate  of  the  judge  who  tried  the 
cause  below,  nor  filed  or  served  the  same  with  the  clerk  of 
the  county,  as  required  by  statute,  defendant  proves  the  mail- 
ing notice  of  retainer  to  plaintiffs  attorney,  directed  to  him  at 
his  residence,  and  payment  of  postage  on  the  2d  January  last, 
and  also  that  no  certificate  of  the  presiding  judge  was  pre- 
sented to  the  supreme  court  commissioner,  who  allowed  a  writ 
of  error.  Plaintiff's  facts :  After  the  judgment  of  reversal  by 
the  common  pleas,  plaintiff's  attorney  obtained  the  certificate 
of  the  first  judge  who  heard  the  argument  in  the  common 
pleas,  dated,  20th  December,  1843  ;  on  the  26th  December, 
plaintiff's  attorney  obtained  an  allowance  of  a  writ  of  error, 
and  order  to  stay  proceedings  by  a  supreme  court  commis- 
sioner on  the  production  of  a  sufficient  bond.  Writ  was  re- 
turnable 1st  Monday  of  January,  1844 ;  before  the  return  day 
of  said  writ,  and  plaintiff's  attorney  thinks,  on  the  day  of  its 
allowance,  he  served  the  same  on  the  clerk  of  the  county,  to- 
gether with  a  sufficient  bond,  a  certificate  of  counsel  of  this 


NEW-YORK  PRACTICE  REPORTS.  18 

K^" 

Gale  agt.  Hoysradt. 

court,  and  the  certificate  of  the  first  judge  of  the  county  before 
mentioned  ;  and  on  30th  December,  1843,  plaintiff's  attorney 
served  notice  of  bringing  the  writ  of  error  and  filing  the  bond 
with  the  clerk  of  the  county,  and  received  defendant's  attor- 
ney's admission  of  service  of  such  notice,  that  the  clerk  of  the 
county,  before  the  return  day  of  said  writ,  made  a  return 
thereto,  and  filed  the  same  together  with  all  the  papers  served 
on  him  in  this  cause,  except  the  bond  (as  stated  by 
the  clerk  of  *the  county),  with  the  clerk  of  this  court,  [*19] 
which  return  plaintiffs'  attorney  has  seen  on  file.  On 
the  2d  February,  1844,  plaintiff's  attorney  filed  assignment  of 
errors,  and  entered  rule  to  join  in  twenty  days ;  no  joinder  in 
error  has  ever  been  received  by  him.  Plaintiff's  attorney 
fully  denies"  ever  in  any  way  or  manner  receiving  notice  of 
retainer  in  this  cause,  from  any  person  for  defendant ;  after 
the  20  days  expired,  plaintiff's  attorney,  on  an  affidavit,  en- 
tered rule  for  judgment  of  reversal  in  common  rule  book, 
kept  by  the  clerk  of  this  court,  and  perfected  judgment  26th 
February,  1844 ;  on  the  10th  July,  1844,  issued  execution  for 
costs ;  on  the  10th  of  September  last,  Jason  Hinds,  one  of  the 
plaintiffs,  died. 

(K  M.  BUCKLIN,  defendants  attorney. 
D.  J.  WAGER,  plaintiff's  attorney. 

Decision. — Ordered  that  the  default  be  opened,  on  payment 
of  all  plaintiff's  costs  in  this  court,  and  costs  of  opposing  mo- 
tion ;  if  said  costs  are  not  paid  in  twenty  days  after  demand, 
then  motion  denied,  with  costs  of  opposing. 


GALE  agt.  HOYSRADT. 

It  is  necessary  to  call  the  plaintiff  on  the  rendering  of  a  verdict  by  a  jury.  Where 
the  plaintiff's  attorney  and  counsel  were  both  in  court  when  the  verdict  was 


NEW-YORK  PRACTICE  REPORTS. 
_M Seatnana  agt.  Tillson. 

rendered,  and  the  clerk  thought  he  called  plaintiff,  motion  to  set  asido  the 
verdict  for  that  reason  waa  denied. 


October  Term,  1844,  NELSON,  C.  «/.,  presiding. 

MOTION  to  set  aside  verdict  and  for  a  new  trial,  on  the 
ground  of  irregularity. 

Plaintiff's  facts :  This  was  an  action  of  replevin,  the  jury 
rendered  a  verdict  for  plaintiff  for  a  portion  of  the  property, 
and  found  for  the  defendant  as  to  the  residue,  and  assessed  the 
value  in  each  case ;  verdict  received  and  recorded ;  the  plain- 
tiff was  not  in  court  when  the  verdict  was  rendered  by  the 
jury  and  received  by  the  court;  plaintiff  was  not  called  by 
the  clerk  or  any  other  person  at  the  time,  or  at  any  time  after 
the  jury  returned  into  court,  nor  did  he  appear  or  answer  at 
that  time.  Defendant's  facts :  The  plaintiff's  attorney  and  coun- 
sel were  both  in  court  when  the  verdict  was  rendered,  and  the 
plaintiff  was  called,  and  either  his  attorney  or  counsel  an- 
swered for  him.  Deputy  clerk  who  officiated  as  clerk,  thinks 
he  called  the  plaintiff,  but  will  not  state  positive ;  his  attorney 
and  counsel  were  both  present  when  the  verdict  was  rendered. 

J.  H.  KEYNOLDS,  plaintiffs  attorney. 
G.  W.  BULKLEY,  defendant's  attorney. 

Decision. — Motion  denied,  with  costs,  without  prejudice. 


SEAMANS  agt 

Facts  and  circumstances  upon  which  defendant  waa  allowed  judgment  as  in  case 
of  nonsuit,  after  stipulation  •  unless  plaintiff  paid  costs  of  motion,  and  referred 
the  cause. 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 
[*20]    *MOTION  for  judgment  as  in  case  of  nonsuit  after  stip- 
ulation. 


NEW-YORK  PRACTICE  REPORTS.  20 

Scamans  agt.  Tillson. 

Defendant's  facts :  Cause  at  issue  upon  issues  of  fact.  Plain- 
tiff got  an  order  for  a  commission  to  examine  a  witness  in 
Michigan,  July,  1843.  Commission  sent  by  mail  in  February, 
1844,  without  any  money  to  pay  expenses.  At  the  April 
circuit,  1844,  plaintiff  gave  defendant  a  stipulation  to  try  said 
cause  at  the  September  circuit  following,  and  told  defendant's 
attorney  he  would  try  it  or  discontinue  the  suit  then,  if  said 
commission  was  not  returned.  Plaintiff  did  not  notice  the 
cause  or  try  the  same  at  said  September  circuit.  Plaintiff's 
facts :  The  witness  in  Michigan  was  the  material  witness  in  the 
cause  as  defendant's  attorney  knew ;  the  commissioner  to  whom 
the  commission  was  directed  was  owing  plaintiff  more  than 
enough  to  pay  the  expenses,  and  was  directed  to  apply  the 
plaintiff's  funds  in  his  hands  for  the  expense ;  the  commis- 
sioner had  funds  in  his  hands  belonging  to  plaintiff  Plain- 
tiff's attorney  stipulated  to  try  said  cause  only  on  the  condition 
that  said  commission  was  returned  in  season,  defendant's  at- 
torney saying  he  would  take  no  advantage  of  the  stipulation 
if  said  commission  was  not  returned.  Plaintiff's  attorney 
never  told  defendant's  attorney  he  would  try  it  whether  the 
commission  was  returned  or  not.  Plaintiff's  attorney  wrote 
to  the  commissioner  in  May  last  as  to  the  commission,  and 
received  no  answer.  In  July  last  he  employed  a  person  to 
go  to  Michigan  to  see  what  had  become  of  the  commission 
and  papers,  there  being  important  papers  with  the  commission 
which  he  could  not  do  without,  and  could  not  execute  a  new 
commission.  Said  person  has  not  yet  returned  but  is  ex- 
pected daily. 

JAMES  HYDE,  defendants  attorney. 
C.  FIELD,  plaintiff's  attorney. 

Decision. — Motion  granted,  unless  plaintiff  pay  costs  of  mo- 
tion and  then  it  is  referred. 


20  NEW-YORE  PRACTICE  REPORTS. 

Bodle  agt.  The  Chenango  County  Mutual  Insurance  Company. 


BODLE  agt.  THE  CHENANGO  COUNTY  MUTUAL  INSURANCE 

COMPANY. 

The  insufficiency  of  an  excuse  offered  to  set  aside  a  verdict.  • 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 

MOTION  to  set  aside  verdict 

Defendant's  facts :  Cause  noticed  for  trial  Cortland  circuit 
for  August  26,  1844.  Defendant's  attorney  states  his  horse 
tired  out  in  travelling,  by  which  means  he  was  unable  to 
reach  the  court-house  until  3  o  clock  P.  M.  He  was  informed 
a  verdict  had  been  taken  in  the  cause  half  an  hour  previous. 
He  endeavored  to  find  plaintiff's  attorney,  to  offer  to  pay 
costs,  and  was  informed  he  left  immediately  after  taking  the 
verdict.  Plaintiff 's  facts :  Verdict  was  taken  after  2 
[*21]  *o'clock  P.  M.,  in  its  regular  order  on  the  calendar. 
Defendant's  attorney  arrived  after  4  o'clock  P.  M. 
Plaintiff's  attorney  went  immediately  and  saw  defendant's 
attorney  and  informed  him  a  verdict  was  taken,  and  asked 
defendant's  attorney  why  he  did  not  come  sooner,  as  he  knew 
it  was  an  old  issue.  Defendant's  attorney  replied  he  stopped 
at  a  tavern  about  five  miles  back  to  get  his  dinner ;  he  made 
no  other  excuse,  did  not  offer  to  pay  costs  at  the  time,  and 
told  his  witness  he  could  go  home. 

GEO.  M.  SMITH,  defendants  attorney. 
HUMPHREY  &  GUSHING,  plaintiff's  attorneys. 

Decision. — Motion  denied  with  costs. 


NEW-YORK  PRACTICE  REPORTS.  21 

"Waring  agt.  M'lntosh. 


WARING  agt.  M'INTOSH. 

Where  there  is  a  conflict  of  statements  as  to  the  true  amount  of  a  judgment 
which  is  alleged  to  be  fraudulent  as  against  a  junior  execution  creditor,  the 
court  will  not  decide  such  matters  upon  motion,  but  will  order  a  reference  to 
a  referee,  to  examine  into,  ascertain,  and  report  the  facts  and  amount  due. 

October  Term,  1844,  NELSON,  C.  J],  presiding. 

MOTION  to  set  aside  or  vacate  fi.  fa.  issued  in  this  cause  as 
fraudulent  and  void  against  Charles  Hallock,  or  that  the  writ 
of  fieri  facias  of  the  said  Charles  Hallock,  be  entitled  to  pri- 
ority, &c. 

Facts  on  the  part  of  said  Hallock :  An  alias  fi.fa.  was  is- 
sued on  the  judgment  in  the  above  cause  on  or  about  the  3d 
of  September,  1844,  and  levied  on  personal  property  of  de- 
fendant ;  the  judgment  record  appears  to  be  entered  on  a  cog- 
novit actionem  signed  by  the  defendant  in  person ;  judgment 
docketed  5th  May,  1837,  for  $2,892  damages  and  $16.81  costs. 
The  fi.fa.  is  directed  to  levy  $2,908.81  and  interest  from  May 
5th,  1837,  after  making  ^some  deductions  of  about  $628  and 
interest.  On  the  28th  January,  1837,  said  Hallock  and  one 
Bates,  then  his  partner,  recovered  a  judgment  in  this  court 
against  defendant  for  $406.12  damages  and  costs,  issued  an 
alias  fi.  fa.  on  the  6th  September,  1844,  directed  to  levy 
$401.12,  with  interest  from  September  27,  1840.  Plaintiff  is 
an  attorney  and  counsellor  of  this  court,  and  acted  as  such  for 
defendant  at  the  time  the  judgment  of  said  plaintiff  was  taken, 
and  defendant  was  then  in  a  great  pecuniary  embarrassment, 
and  alleges  that  said  judgment  was  confessed  without  any 
bonafide  indebtedness,  or  if  any,  not  more  than  one  or  two 
hundred  dollars,  and  that  the  full  amount  of  such  indebtedness 
has  been  paid  previous  to  the  issuing  of  said  plaintiff 's  fi.fa. 
Hallock  alleges  the  full  amount  of  his  judgment  to  be  due  and 
owing,  and  will  be  deprived  of  all  means  of  collecting  the  same 
if  the  proceeds  of  defendant's  property  is  applied  on  said  plain- 
tiff's  execution.  The  defendant  states  that  he  owed  said 


22  NEW-YORK  PRACTICE  REPORTS 

Waring  agt  M'Intosh. 

plaintiff  and  his  partner  a  due  bill  of  $55.96,  and  some  further 
amount  for  professional  services  performed  in  several 
1*22]     suits  in  which  defendant  *was  involved,  and  in  the 
course  of  the  business,  plaintiff  received  at  different 
times  various  small  and  large  amounts  of  money ;  he  is  not 
otherwise  indebted  to  said  plaintiff.    Since  the  rendition  of 
the  judgment,  has  said  plaintiff's  goods,  together  with  money 
collected  by  plaintiff  for  defendant,  which  amounts  to  $553.46, 
and  believes  plaintiff's  indebtedness  fully  paid.    Plaintiff  has 
refused  to  give  said  Hallock's  attorney  his  account,  but  has 
told  defendant  he  supposed  there  could  not  be  due  him  (plain- 
tiff) over  $300,  and  gave  defendant  a  memorandum  in  figures, 
which  made  the  amount  $430.44,  but  did  not  look  over  his 
books  fully,  and  could  not  say  how  much  more  was  due. 
Plaintiff  admitted  to  defendant's  attorney  that  there  was  not  as 
much  due  on  the  judgment  as  was  directed  to  be  levied,  but 
utterly  refused  to  give  defendant's  attorney  any  account  of  tho 
amount  in  fact  due  on  said  judgment.    It  is  also  alleged  by 
said  Hallock  that  the  teste  and  return  of  the  plaintiff  'sfi.  fa.  is 
erroneous.    Plaintiff  and  his  assignee's  facts ;  first  the  assign- 
ees :  The  judgment  in  this  cause  was  in  March,  1838,  assigned 
by  plaintiff  to  one  Ann  Haekstaff,  an  aged  lady  of  some  for- 
tune, (for  whom  plaintiff  was  counsel  and  agent  in  investing 
her  money,)  for  a  full  and  valuable  consideration  paid  by  her 
Said  Ann  Hackstaff  died  July,  1841.    Letters  testamentary 
were  shortly  after  granted  upon  her  estate  to  her  son  and  plain- 
tifij  an  inventory  of- her  estate  was  taken  and  sworn  to  by  said 
executors,  in  which  the  said  judgment  of  plaintiff  appears  in 
the  list  of  property  of  said  testatrix  in  July,  1842. 

The  attorney  for  the  assignees  had  frequently  tried  to  pro- 
cure a  return  of  the  first  Ji.  fa.  on  the  judgment,  in  order  to 
issue  an  alias  thereon,  but  was  unable  to  do  so  until  about 
the  month  of  August  last,  when  an  alias  Ji.  fa.  was  issued  by 
him,  and  being  informed  that  some  deductions  were  to  be 
made,  deferred  filling  up  the  writ  until  he  could  ascertain 
from  plaintiff  the  amount  of  such  deductions,  and  when  in 
conversation  with  said  plaintiff  at  the  time  of  filling  up  the 


NEW-YOKE  PRACTICE  REPORTS.  23 

"Waring  agt.  M'Intosh. 

writ,  he,  through  haste  and  inadvertence,  incorrectly  stated 
the  places  of  teste  and  return  thereof.    He  first  became  aware 
of  the  error  on  service  for  the  papers  of  this  motion,  and  too 
late  to  prepare  a  cross  motion  to  amend.    He  was  not  the 
attorney  in  procuring  the  judgment  or  in  issuing  the  original 
execution.     Plaintiff  had  promised  to  draw  affidavits  for  him- 
self and  others  to  establish  the  correctness  of  said  judgment, 
and  that  it  had  been  recovered  on  good  and  full  cause  of  ac- 
tion, and  was  still  due  with  the  deductions  on  said  writ  spe- 
cified ;    he  is  informed  and  believes  plaintiff  has  now  no  ' 
interest  in  the  said  judgment  except  as  executor.     Plaintiff's 
facts :  Plaintiff  states  that  this  judgment  was  for  money  lent 
and  advanced  by  plaintiff  to  defendant  and  for  professional 
services,  and  that  defendant  at  the  time  of  docketing  said 
judgment  was  actually  indebted  to  him  the  amount 
*of  said  judgment,  and  was  so  entered  up  for  such     [*23] 
indebtedness,  and  for  such  as  might  be  due.  from 
the  defendant  to  plaintiff,  and  also  for  such  indebtedness  as 
might  accrue  in  favor  of  plaintiff  and  his  partners ;  and  finds 
from  an  examination  of  his  accounts  against  said  defendant, 
that  said  defendant,  at  the  time  said  judgment  was  entered, 
was  actually  indebted  to  him  in  the  amount  named  in  said 
judgment.     At  or  about  the  time  of  giving  said  judgment, 
he  gave  up  to  defendant  his  note  for  $500,  which  had  been 
paid  by  plaintiff.     Plaintiff  issued  an  execution  immediately 
after  the  entry  of  said  judgment,  which  was  returned  nulla 
bona.    All  the  moneys  he  has  received  on  account  of  said 
defendants  have  been  duly  credited  to  him  ;  and  that  giving 
defendant  all  his  credits,  he  is  actually  indebted  to  him  the 
amount  named  in  the  execution.     Plaintiff  let  defendant  ex- 
amine the  books  of  the  firm,  and  defendant  took  the  memo- 
randum therefrom  mentioned  in  defendant's  affidavit ;  the 
amount  was  only  one  that  plaintiff's  late  firm  had  against  de- 
fendant previous  to  the  judgment.     Plaintiff,  for  a  valuable 
consideration,  assigned  said  judgment  as  before  stated,  in  the 
year  1838.    The  annexed  account  of  plaintiff  against  defend- 


23  NEW-YORK  PRACTICE  REPORTS. 

Smith  agt.  Reid. 

ant,  shows  the  amount  actually  due  from  said  defendant.    The 
account  added  up,  makes  $39,978.68. 

SMITH  BARKER,  attorney  for  Hallock. 

J.  C.  DELAPLAINE,  attorney  for  plaintiff's  assignees. 

Decision. — Ordered  that  it  be  referred  to  a  referee  to  exam- 
ine into  the  matters  involved  in  said  motion,  and  to  report  to 
this  court  forthwith  the  amount  actually  due  upon  the  judg- 
ment in  this  cause.  Costs  of  motion  to  abide  the  decision  of 
the  motion,  upon  the  coming  in  of  the  report  of  the  referee : 
in  the  meantime,  proceedings  on  the  executions  in  both  causes 
to  be  stayed. 


SMITH  agt.  REID. 

Facts  and  circumstances  upon  which  defendant  was  allowed  to  come  in  and  de- 
fend upon  the  merits  before  a  referee,  on  terms,  where  an  inquest  was  taken 
by  default ;  the  defendant's  attorneys  alleging  they  had  been  misled  by  the 
court  proceedings  published  daily  in  a  morning  newspaper. 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 

MOTION  to  set  aside  inquest,  verdict,  and  subsequent  pro- 
ceedings. 

Defendant's  facts  :  On  the  3d  July,  1844,  served  plaintiff's 
attorneys  with  affidavit,  order,  notice  of  motion,  and  affidavit 
of  merits,  to  set  aside  the  inquest  in  this  cause,  by  reason  of 
being  misled  by  the  Horning  Herald,  New- York  (defendant's 
attorneys  residing  in  Kings  county),  on  the  2d  day  of  the  cir- 
cuit, not  finding  this  cause  among  those  published  for  the  day 
calendar  of  that  day ;  one  of  defendant's  attorneys  alleging  he 
had  been  ready  at  all  the  previous  circuits,  and  was  then  ready 
to  try  said  cause;  and  plaintiff's  attorney  knew  he 
[*24]  *had  a  defence,  and  an  affidavit  of  merits  had  been 


NEW-YORK  PRACTICE  REPORTS.  24 

Smith  agt.  Reid. 

filed.  An  inquest  was  taken,  and  verdict  for  plaintiff  $500, 
on  the  said  2d  day  of  the  circuit.  On  the  9th  July,  1844, 
defendant's  attorneys  served  on  plaintiff's  attorneys  notice  of 
tender  and  stipulation  to  pay  costs  of  inquest  and  subsequent 
proceedings  on  being  taxed,  and  to  try  said  cause  at  the  then 
circuit.  On  the  10th  July,  1844,  defendant's  attorneys  were 
served  by  plaintiff's  attorneys  with  bill  of  costs  of  inquest  and 
notice  of  taxation  for  the  15th  July,  1844 :  on  that  day,  one 
of  defendant's  attorneys  attended  on  taxation.  Immediately 
after  said  costs  were  taxed,  one  of  plaintiff's  attorneys  re- 
marked he  could  not  try  the  cause  at  that  circuit,  one  of  his 
witnesses  being  absent  out  of  town.  The  defendant's  attorney 
informed  plaintiff's  attorney  at  that  time  in  what  manner  he 
had  been  misled  by  the  Herald,  and  insisted  plaintiff's  attor- 
ney was  unkind  in  taking  the  costs  from  him  under  the  cir- 
cumstances. Plaintiff's  attorney  replied  he  was  out  of  town 
when  the  inquest  was  taken ;  and  as  it  was,  he  was  in  no 
hurry  for  the  costs:  defendant's  attorney  might  pay  them, 
taking  his  own  time.  Soon  after  said  bill  of  costs  was  taxed, 
defendant  in  this  cause  became  insane,  and  was  confined  in  a 
lunatic  asylum,  where  he  is  still.  Defendant's  attorneys  were 
unable  to  get  the  money  for  the  costs  from  defendant.  Two 
or  three  weeks  since,  defendant's  attorneys  received  a  note 
from  plaintiff's  attorneys,  requesting  the  costs  to  be  paid,  that 
they  might  notice  the  cause  for  the  next  circuit.  Defendant's 
attorney  (who  had  the  principal  charge  of  the  cause,  and  who 
is  son-in-law  to  defendant)  was  at  that  time  obliged  to  go  into 
the  country,  on  account  of  sickness  in  his  family.  Before 
leaving,  he  wrote  a  line  to  plaintiff's  attorneys,  requesting 
them  to  notice  said  cause,  and  stating  to  them  the  fact  of  the 
insanity  of  defendant,  and  would  the  next  week  endeavor  to 
pay  the  costs  out  of  his  own  pocket,  and  pledged  himself  the 
costs  should  be  paid  if  they  would  notice  the  cause.  On  his 
return,  he  called  on  plaintiff's  attorneys  two  or  three  times  to 
pay  said  costs,  and  not  finding  them  in,  was  obliged  again  to 
go  to  his  family  in  the  country  on  account  of  continued  illness ; 
and  on  his  second  return,  called  on  plaintiff's  attorneys  to  pay 


24  NEW-YORK  PRACTICE  REPORTS. 

Smith  agt.  Reid. 

said  costs :  not  finding  them,  called  again  next  day  and  found 
them,  offered  to  pay  the  costs,  take  short  notice  of  trial,  and 
put  cause  on  calendar  for  next  circuit,  of  which  there  wa^ 
full  time.  Plaintiff's  attorneys  refused  to  take  the  costs, 
or  do  anything  in  the  matter  defendant's  attorney  had  re- 
quested. Defendant's  attorney  has  just  seen  on  his  table 
(about  4th  September,  1844),  for  the  first  time,  a  copy 
bill  of  costs,  purporting  to  be  a  taxed  bill,  but  no  notice  on  it 

to  that  effect,  nor  is  there  any  demand  of  payment  upon 
[*25]  it ;  nor  has  defendant's  "^attorney  ever  received  any 

demand  of  payment  of  said  costs,  but  there  was  an  in- 
dorsement on  said  bill  of  costs  as  follows :  "  One  of  the  plain- 
tiff 's  witnesses  is  out  of  town,  and,  therefore,  the  cause  could 
not  be  brought  on  the  July  circuit."  Defendant  is  still  con- 
fined in  the  lunatic  asylum,  and  it  is  uncertain  whether  he  will 
ever  be  able  to  transact  business  again  ;  no  committee  has  been 
appointed  over  him.  Defendant's  attorneys  have  just  been 
served  with  a  bill  of  costs  in  this  suit,  and  notice  of  taxation 
for  23d  of  September,  1844.  Defendant  swears  to  merits. 
Plaintiff's  facts:  Inquest  taken  in  its  regular  order  on  the 
calendar  at  July  circuit,  1844.  In  February  at  the  December 
circuit  last,  plaintiff's  attorney  had  watched  this  cause  with  his 
witnesses  for  ten  days,  then  the  cause  was  suddenly  and  un- 
expectedly called  on,  while  plaintiff's  witness  was  gone  to  din- 
ner, he  was  expected  in  court  soon,  and  did  come  in  a  few 
minutes  after  the  cause  was  disposed  of.  Defendant  would  not 
consent  to  any  arrangement  to  save  costs  or  delay,  and  plain- 
tiff's attorneys  paid  defendant's  term  costs.  Very  shortly  af- 
ter the  cause  had  gone  down,  one  of  plaintiff's  attorneys  made 
a  fair  arrangement,  as  he  supposed,  with  one  of  defendant's  at- 
torneys to  put  the  cause  again  on  the  calendar  at  the  same  cir- 
cuit, and  within  three  hours  thereafter  received  from  the  other 
attorney  of  defendant,  notice  of  motion  for  next  special  term 
of  this  court  for  judgment  as  in  case  of  nonsuit.  Plaintiff's 
attorney  was  informed  soon  by  defendant's  attorney  with  whom 
he  made  the  arrangement,  that  the  notice  of  motion  was  a  mis- 
take, that  he  would  make  it  all  right  He  then  drew  up  a 


NEW-YORK  PRACTICE  REPORTS.  25 

Smith  agt.  Reid. 

stipulation  to  arrange  the  same,  and  plaintiff's  attorney  signed 
the  same.  The  day  prior  to  said  motion  day,  plaintiff's  attor- 
neys sent  to  defendant's  attorneys  for  a  copy  of  the  stipulation  ; 
the  defendant's  attorney  who  gave  the  notice  of  motion  refused 
to  consent  to  anything  his  partner  had  done,  but  gave  no  no- 
tice thereof  to  plaintiff 's  attorneys,  and  they  narrowly  escaped 
having  said  motion  taken  by  default.  Plaintiff's  attorneys, 
however,  accepted  defendant's  stipulation  to  pay  the  costs  of 
inquest,  and  made  out  the  same  and  had  them  taxed.  One  of 
defendant's  attorneys  stated  to  the  taxing  officer,  he  did  not 
want  a  copy  of  the  taxed  bill  of  costs  to  be  served  or  any  de- 
mand to  be  made ;  the  taxing  officer  struck  those  items  out  of 
the  bill.  Plaintiff's  attorney  supposed  from  the  conversation 
then  had  with  defendant's  attorney,  that  he  was  going  to  pay 
the  costs  soon,  and  only  wanted  to  go  over  to  Brooklyn  to  get 
the  money,  to  which  he  consented.  Plaintiff's  attorneys,  after 
requesting  of  defendant's  attorneys  and  sending  to  them  a 
number  of  times  to  pay  said  costs,  directed  a  taxed  bill  to  be 
served  on  defendant's  attorneys,  which  was  done,  July 
29th,  *f844.  Plaintiff's  attorneys  do  not  know  who  [*26] 
indorsed  on  said  bill  that  plaintiff's  witness  was  out  of 
town.  On  the  19th  of  September,  one  of  defendant's  attorneys 
called  on  plaintiff's  attorneys,  and  said  he  intended  still  to  pay 
said  costs,  but  offered  no  money,  and  did  not  say  he  had  it 
with  him,  and  was  informed  judgment  had  been  entered.  The 
circuit  where  venue  is  laid  commences  23d  September,  1844. 
Defendant  told  one  of  plaintiff's  attorneys  personally  that  he 
himself  had  been  misled  by  the  report  of  the  day  calendar  in 
the  paper,  and  did  not  cast  any  blame  on  defendant's  attorneys. 
Plaintiff's  attorneys  refused  to  open  the  judgment,  as  it  was 
regular,  for  fear  of  a  long  and  expensive  litigation  with  an 
insane  defendant,  whose  ability  to  pay  may  be  considered 
doubtful. 

WARING  &  EALPH,  defendant's  attorneys. 
A.  L.  &  H.  P.  ALLEN,  plaintiffs  attorneys. 
VOL.  L  3 


26  NEW-YORK  PRACTICE  REPORTS. 

Van  Elton  agt.  Hurst 

Decision. — Ordered  that  motion  be  granted  so  far  as  to  per- 
mit defendant's  attorneys  on  payment  of  costs  of  trial  or  in- 
quest, and  subsequent  proceedings,  if  any,  and  costs  of  oppos- 
ing motion,  to  be  heard  before  referee  on  the  merits ;  that  the 
referee  make  report  to  this  court.  Plaintiff's  proceedings 
stayed  until  the  coming  in  of  the  report. 


VAN  ELTEN  agt  HURST  &  CUSHNEY. 

Defendants'  excuse  where  he  suffered  an  inquest  by  default ;  and  the  terms  im- 
posed upon  allowing  him  to  come  in  and  defend. 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 

MOTION  to  set  aside  inquest,  and  for  new  trial. 

Defendants'  facts :  Defendants  swear  to  merits ;  issue  was 
joined  30th  August,  1842;  inquest  taken  llth  September, 
1844 ;  they  received  no  notice  from  their  attorney,  or  from 
any  other  person,  to  prepare  for  trial,  and  had  no  knowledge 
the  cause  was  noticed  for  trial.  Being  so  long  in  court,  de- 
fendants supposed  it  was  dropped,  and  would  not  be  further 
prosecuted.  Defendants'  attorney  states  cause  was  noticed  for 
trial,  April,  1844,  by  plaintiff's  attorney,  who  afterwards  coun- 
termanded the  notice ;  he  heard  nothing  more  from  it  until 
he  saw  it  on  the  calendar  for  September  circuit,  1844 ;  he  did 
not  recollect  ever  receiving  any  notice  of  trial  for  said  Sep- 
tember circuit ;  he  told  plaintiff's  attorney  so,  who  said  he 
thought  he  had  served  notice  of  trial  on  defendants'  attorney. 
After  the  inquest,  defendants'  attorney  found  a  notice  of  trial 
with  some  chancery  papers  which  were  served  at  same  time 
and  filed  away  ;  said  notice  of  trial  being  with  said  chancery 
papers,  escaped  the  notice  of  defendants'  attorney.  Defendants' 
attorney  offered  in  a  stipulation  to  plaintiff's  attorney  to  pay 
costs  of  inquest,  on  having  the  same  waived,  and  on 
[*27]  giving  defendants  a  trial  ^therein.  Plaintiff's  facts : 
Inquest  regularly  taken  on  the  llth  September,  1844, 
in  pursuance  of  a  notice  duly  served. 


NEW-YORK  PRACTICE  REPORTS.  27 

Pentz  agt.  Willoughby. 

D.  PRATT,  defendants'1  attorney. 
W.  PORTER,  JR.,  plaintiffs  attorney. 

Decision. — Ordered  that  defendants  have  leave  to  come  in 
and  defend  before  referee,  on  payment  of  costs  of  circuit,  in- 
quest, and  all  subsequent  proceedings,  and  costs  of  opposing 
motion.  Judgment  to  stand,  and  plaintiff  at  liberty  to  issue 
execution  as  security. 


PENTZ,  President,  &c.  agt.  WILLOUGHBY. 

Where  an  action  was  commenced  on  a  judgment  in  the  Superior  Court,  after  an 
order  staying  execution  upon  writ  of  error  to  this  court ;  and  on  affirmance  by 
this  court,  plaintiff  entered  judgment  by  default ;  subsequent  to  which,  defend- 
ant brought  a  writ  of  error  upon  the  judgment  of  affirmance.  Defendant  was 
allowed  an  order  staying  plaintiff's  proceedings  upon  his  last  judgment,  until 
the  principal  case  was  decided  in  the  court  of  errors. 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 

MOTION  to  set  aside  default  and  to  stay  all  further  proceed- 
ings in  this  cause  until  the  decision  of  the  principal  case  in  the 
court  of  errors. 

Defendant's  facts :  This  is  an  action  of  debt,  on  judgment 
rendered  in  superior  court  of  New- York,  on  a  bond.  On 
said  judgment  a  writ  of  error  was  brought  to  this  court,  and 
judgment  on  said  writ  affirmed,  July,  1844.  On  said  last 
judgment  a  writ  of  error  has  been  brought  to  the  court  of 
errors,  on  which,  is  indorsed  the  proper  orders,  staying  execu- 
tion ;  this  suit  is  brought  on  the  judgment,  upon  which  the 
said  last  writ  of  error  is  brought.  Immediately  on  the  deci- 
sion of  this  court,  plaintiff's  attorney  entered  defendant's 
default  for  want  of  a  plea.  Defendants  offered  to  pay  plain- 
tiff 's  attorney  costs  of  default  on  waiving  same,  which  was 
refused.  This  case  necessarily  depends  on  the  result  of  the 


27  NEW-YORK  PRACTICE  REPORTS. 

Pentz  agt  Willoughby. 

action  of  the  court  of  errors  upon  the  judgment  upon  which 
the  same  is  brought.  Defendant  swears  to  merits  and  also 
that  the  original  judgment  in  the  superior  court  of  New-York, 
was  in  the  name  of  Elntheros  B.  Comstock,  President,  &c., 
said  Frederick  Pentz  having  succeeded  him  in  said  office. 
When  this  suit  was  commenced,  the  original  suit  in  the  name 
of  Comstock,  President,  &c.,  having  been  removed  to  this 
court,  by  writ  of  error,  this  court  made  an  order  staying 
plaintiff 's  proceedings  upon  the  judgment,  until  the  decision 
of  this  court,  which  order  was  made  before  issue  joined  in 
this  suit%.  Plaintiff's  facts :  This  is  an  action  of  debt  on  judg- 
ment in  superior  court  of  New- York,  entered  17th  October, 
1842,  for  $120,000  and  $257.91  damages  and  costs,  which 
judgment  was  upon  a  bond  given  by  defendant  to  the  asso- 
ciation for  $60,000  and  interest  At  the  time  of  rendering 
said  judgment,  there  was  due  upon  said  bond  for  interest 

alone,  $9,000,  no  part  of  which  has  been  paid.  This 
[*28]  action  was  *commenced  by  declaration,  June  2,  1843, 

previous  to  which  time  a  writ  of  error  was  brought 
upon  the  said  judgment  in  superior  court,  and  an  order  stay- 
ing execution ;  the  bond  filed  upon  said  writ  was  in  the 
penalty  of  a  sum  not  amounting  to  $4,200 ;  on  the  29th  July, 
1844,  this  court  affirmed  the  judgment  of  said  superior  court ; 
12th  August  last,  (eighteen  days  having  previously  elapsed  to 
plead  in),  defendant's  default  was  entered  for  not  pleading, 
and  rule  for  final  judgment.  Judgment  of  affirmance  in  this 
court  was  entered  7th  of  August  last ;  at  which  time  there 
was  due  from  defendant  Willoughby,  for  interest,  $16,200, 
and  which  is  still  due.  One  writ  of  error,  brought  by  de- 
fendant upon  said  judgment  of  affirmance,  has  been  quashed 
by  the  court  of  errors  on  the  23d  September,  1844.  Another 
has  been  issued,  and  was  allowed  16th  September,  1844,  and 
an  order  made  by  the  officer  staying  execution.  The  bond 
executed  upon  said  writ  is  in  the  penalty  of  $5,000.  Plain- 
tiff alleges  he  has  a  scanty  security  for  his  debt ;  and  that 
defendant,  by  evading  the  statute  requiring  security  upon  a 
writ  of  error,  prevents  him  from  realizing  the  just  amount  of 


NEW-YORK  PRACTICE  REPORTS.  28 

Brown  agt.  Torrance. 

interest  on  defendant's  bond,  and  charges  delay  to  be  the  sole 
object  of  bringing  the  writ  of  error. 

F.  ANTHON,  defendant's  attorney. 

E.  E.  MOUNT,  JR.,  plaintiff 's  attorney. 

Decision. — Ordered  that  the  judgment  entered  in  this  cause 
stand,  but  all  proceedings  upon  the  judgment  to  be  stayed  un- 
til the  decision  of  the  principal  case  now  pending  in  the  court 
of  errors  shall  be  made.  Defendant  to  pay  costs  of  opposing 
this  motion. 


BROWN  &  EATON  agt.  TORRANCE. 

Facts  upon  which  defendant  set  aside  an  execution  issued  upon  a  judgment  en- 
tered upon  a  report  of  referees,  after  defendant  had  obtained  an  order  setting 
aside  the  report,  etc.,  upon  terms. 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 

MOTION  to  set  aside  execution  for  irregularity. 

Defendant's  facts :  Judgment  was  entered  in  July,  1844,  upon 
an  ex  parte  report  of  referees.  A  motion  was  made  to  this  court 
to  set  aside  the  report  and  subsequent  proceedings  for  irreg- 
ularity, or  for  other  relief:  upon  which  motion,  defendant 
swore  to  merits ;  and  a  rule  was  granted  on  the  12th  August, 
1844,  setting  aside  the  report  and  subsequent  proceedings  on 
payment  of  costs  of  hearing,  and  subsequent  proceedings  and 
costs  of  opposing  motion.  Within  twenty  days  after  the  entry 
of  said  rule,  and  about  a  week  before  the  twenty  days  ex- 
pired, the  law  partner  of  defendant's  attorney,  and  counsel  for 
defendant,  called  on  plaintiffs'  attorney,  and  requested  him  to 
make  out  his  costs  under  said  rule ;  which  was  done.  De- 
fendant's counsel  objected  to  some  items  in  said  bill. 
Plaintiffs'  attorney  *said  he  would  see  one  of  plaintiffs  [*29] 


29  NEW-YORK  PRACTICE  REPORTS. 

Brown  agt.  Torranoe. 

in  a  few  days,  and  procure  proof  to  satisfy  defendant's 
counsel  of  the  correctness  of  some  of  the  items.  Defendant's 
counsel  claimed  that  the  bill  must  be  taxed,  and  it  was  then 
so  understood  between  them,  and  taxation  postponed  merely 
on  account  of  the  absence  of  said  plaintiff.  Defendant's  coun- 
sel saw  defendant,  Saturday,  August  31,  1844,  and  advised 
defendant  to  go  and  settle  said  costs  by  Tuesday  following. 
Defendant's  counsel  would  ascertain  of  plaintiffs'  attorney 
when  he  was  ready,  and  let  him  know.  On  Monday  defend- 
ant's counsel  saw  plaintiffs'  attorney,  and  found  him  ready  to 
tax  the  bill.  They  went  before  a  taxing  officer  and  had  the 
same  taxed,  he  making  some  deductions.  When  same  were 
taxed,  defendant's  counsel  informed  plaintiffs'  attorney  the  de- 
fendant would  be  there  the  next  day  and  settle  them,  to  which 
plaintiffs'  attorney  did  not  object :  the  taxation  was  without 
notice.  On  Tuesday,  September  3,  1844,  next  day  defendant 
came  and  gave  defendant's  counsel  the  money  to  pay  the 
costs ;  and  on  the  same  day  he  tendered  the  amount  of  the 
taxed  bill  to  plaintiffs'  attorney,  who  admitted  the  sufficiency 
of  the  tender,  but  refused  to  receive  it,  as  he  said  it  was  too 
late  :  it  should  have  been  made  the  day  before.  At  that  time 
no  execution  had  been  issued,  and  plaintiffs  had  not  incurred 
any  expense  or  liability  subsequent  to  the  taxation.  De- 
fendant's counsel  has,  within  a  few  days,  ascertained  the  fact 
that  an  execution  is  issued,  and  now  in  the  hands  of  the  sher- 
iff. Plaintiffs'  facts :  The  same  in  substance  as  defendant's, 
down  to  the  time  when  defendant's  counsel  called  on  plaintiffs' 
attorney  for  the  amount  of  the  costs  under  the  rule.  After  the 
costs  were  made  out,  defendant's  counsel  said  they  were  so  large, 
he  thought  defendant  would  rather  let  the  judgment  stand 
than  pay  them;  but  he  would  sec  defendant  in  a  few  days, 
and  let  him  know.  About  a  week  previous  to  the  expiration 
of  the  twenty  days,  defendant's  counsel  called  on  plaintiffs'  at- 
torney, and  stated  that  defendant  would  pay  said  costs  on 
taxation;  and  defendant's  counsel  proposed  they  should  go 
before  the  taxing  officer  on  Friday,  30th  August,  1844,  and 
get  costs  taxed  ;  to  which  plaintiffs'  attorney  assented.  Plain- 


NEW-YORK  PRACTICE  REPORTS.  29 

Pomeroy  agt.  Lownsbury. 

tiffe'  attorney  states,  but  for  such  stipulation  he  should  have 
noticed  the  bill  of  costs  for  taxation  at  the  regular  time,  and 
had  the  same  taxed.  On  the  morning  of  the  30th  August, 
1844,  plaintiffs'  attorney  received  a  note  from  defendant's 
counsel,  requesting  a  postponement  of  such  taxation  until 
Monday  or  Tuesday  following.  On  Monday  they  went  before 
the  taxing  officer  and  had  the  same  taxed,  defendant's  coun- 
sel stating  that  the  bill  would  be  paid  next  day ;  to  which 
plaintiffs'  attorney  replied,  "  that  to-morrow  would  not 
*be  to-day,"  or  words  to  give  defendant  to  understand  [*30] 
the  twenty  days  would  expire  that  day.  After  the 
twenty  days  had  expired,  defendant's  counsel  called  upon 
plaintiff's  attorney  and  offered  to  pay  the  said  bill  of  costs, 
which  plaintiffs'  attorney  declined  to  receive.  Execution  has 
been  issued  and  delivered  to  the  sheriff.  Plaintiffs'  attorney 
learns  that  defendant  has  confessed  a  judgment  since  this,  and 
execution  issued  on  it,  which  would  cover  all  defendant's 
property. 

A.  B.  NICHOLS,  defendant's  attorney. 
H.  K.  VIELE,  plaintiffs'  attorney. 

Decision. — Motion  granted  without  costs. 


POMEROY  agt.  LOWNSBURY. 

Terms  imposed  on  defendant,  allowing  a  commission  to  issue  with  a  stay,  after 
plaintiff  had  prepared  the  cause,  and  was  expecting  to  proceed  to  a  hearing 
the  next  day  afteY  motion  papers  were  served. 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 

MOTION  for  a  commission. 

Defendant's  facts:  Action  assumpsit,  issue  joined  15th 
July,  1844 ;  cause  referred  10th  August,  1844 ;  noticed  for 
hearing  on  the  31st  August,  1844.  Defendant  swears  to 


30  NEW-YORK  PRACTICE  REPORTS. 

Pomeroy  agt  Lownsbury. 

merits  in  the  usual  manner ;  and  also  to  the  materiality  of  the 
witness  residing  at  St.  Louis,  Missouri,  for  which  a  commis- 
sion is  wanted,  and  the  particulars  of  the  defence  which  he 
expects  to  prove  by  said  witness.  Defendant  was  unable  to 
find  out,  after  diligent  inquiry,  where  witness  resided,  until 
about  26th  August,  1844.  Defendant  is  engaged  in  running 
a  boat  on  the  canal  between  Albany  and  Buffalo :  he  left  Al- 
bany the  latter  part  of  July,  and  did  not  return  until  30th 
August,  1844,  and  heard'  nothing  of  the  cause  being  noticed 
until  the  last-mentioned  day.  One  of  defendant's  attorneys, 
on  the  15th  July,  1844,  wrote  to  plaintiffs'  attorneys,  stating 
in  substance  the  particulars  of  defendant's  defence,  and  that  it 
would  be  material  to  have  the  testimony  of  said  foreign  wit- 
ness, unless  plaintiffs  would  admit  the  items  of  defence  in- 
tended to  be  proved  by  him  ;  and  thinks  he  also  stated  that 
defendant's  attorneys  did  not  know  the  residence  of  said 
witness,  and  urged  plaintiffs'  attorneys  to  grant  some  delay, 
in  order  to  get  the  testimony  of  said  witness,  as  also  to  procure 
the  other  witnesses  in  said  cause,  who  were  mostly  engaged  on 
the  canal.  Plaintiffs'  attorneys  declined  to  admit  the  items 
above  referred  to,  or  to  grant  the  delay  requested.  Defendant's 
attorneys  have  since  requested  of  plaintiffs'  attorneys  to  delay 
noticing  the  cause  for  hearing,  on  the  ground  of  the  difficulty 
in  getting  the  necessary  testimony.  This  cause  was  noticed 
for  hearing  on  the  17th  August,  1844,  after  defendant  had  left 
Albany;  and  defendant's  attorney  did  not  know  where  to 
direct  a  communication  to  him,  and  was  unable  to 
[*31]  move  in  the  matter  until  defendant  *returned.  Plain- 
tiffs' facts :  One  of  the  plaintiffs'  attorneys  states  they 
are  attorneys  for  a  person  not  named  as  one  of  the  plaintiffs, 
but  who  is  plaintiff  in  interest  in  this  cause ;  after  issue  joined, 
plaintiffs'  attorneys  received  a  letter  from  one  of  defendant's 
attorneys,  requesting  a  delay  in  said  cause  until  the  close  of 
the  canal  navigation,  to  enable  defendant  to  get  his  witnesses, 
and  intimated  they  might  want  the  testimony  of  a  witness  by 
commission.  Plaintiffs'  attorneys  after  consultation  with  plain- 
tiff in  interest,  who  was  opposed  to  any  delay,  wrote  to  defend- 


NEW-YOEK  PRACTICE  REPORTS.  31 

Pomeroj  agt.  Lownabury. 

ant's  attorneys  to  that  effect ;  and  requested  them  to  bring  on 
the  motion  for  a  commission,  at  the  same  time  with  the  motion 
for  reference.  Cause  was  referred  on  the  10th  August,  1844 ; 
on  the  9th  August,  1844,  plaintiffs'  attorneys  received  a  letter 
from  one  of  defendant's  attorneys,  who  had  the  charge  of  this 
suit,  that  he  was  going  to  be  absent  until  27th  August.  1844, 
requesting  plaintiffs'  attorneys  to  let  the  cause  stand  as  ii  did 
until  his  return,  and  requesting  them  not  to  notice  the  cause 
until  his  return.  Plaintiff  in  interest  declined  giving  any  de- 
lay, plaintiff's  attorneys  immediately  informed  defendant's  at- 
torneys of  the  fact,  together  with  the  reasons  of  said  plaintiff 
in  interest,  and  also  informed  defendant's  attorneys  they  would 
put  the  time  of  hearing  beyond  27th  August,  1844.  .  On  the 
14th  of  August,  1844,  plaintiffs'  attorney  received  a  letter  from 
the  other  attorney  for  defendant,  requesting  the  hearing  to  be 
postponed  until  middle  of  September,  in  order  to  give  time  for 
the  absent  attorney  to  return  and  prepare  for  the  hearing. 
Plaintiff  in  interest  refused  to  give  any  delay,  and  plaintiffs' 
attorneys  so  informed  defendant's  attorneys.  Plaintiffs'  attor- 
neys, from  the  two  letters  last  mentioned,  were  led  to  believe 
defendant  had  abandoned  his  commission :  had  they  thought 
otherwise,  they  should  not  have  noticed  the  cause  for  hearing 
until  said  commission  was  disposed  of,  plaintiff  in  interest 
being  urgent  to  have  the  cause  progress.  Plaintiffs'  attorneys 
noticed  it  for  hearing  on  the  17th  August,  1844,  for  the  31st 
August,  1844.  Late  in  the  evening  of  30th  August,  1844,  and 
after  the  plaintiff  in  interest  had  procured  his  witnesses  and 
entirely  prepared  for  the  hearing,  plaintiffs'  attorneys  were 
served  with  papers  for  this  motion,  with  a  stay  of  proceedings. 

DEAN  &  NEWLAND,  defendant's  attorneys. 
COCHRAN  &  EATHBUN,  plaintiffs'  attorneys. 

Decision. — Motion  granted,  with  stay  until  1st  January, 
1845,  on  payment  by  defendant  of  costs  of  reference  down  to 
time  of  stay,  and  costs  of  opposing  motion. 


32  NEW-YORK  PRACTICE  REPORT& 

Mann  agt  Greenwood. 


[*32]  *MUNN  agt.  GREENWOOD,  &c. 

Facts  and  circumstances  upon  which  defendant  was  denied  a  motion  for  judgment 
as  in  case  of  nonsuit,  or  that  plaintiff  pay  his  taxable  costs,  on  the  ground  that 
the  suit  had  been  settled. 

October  Term,  1844,  NELSON,  0.  J.,  presiding. 

MOTION  for  judgment  as  in  case  of  nonsuit,  or  that  plaintiff 
pay  defendants'  taxable  costs  in  this  cause. 

Defendants'  facts :  Suit  commenced  about  6th  July,  1843  ; 
issue  of  fact  joined  21st  July,  1843.  Plaintiff  did  not  notice 
the  cause  for  the  circuit,  on  the  1st  Monday  of  August,  1844 ; 
that  issues  of  a  later  date  than  21st  July,  1843,  were  tried  at 
said  circuit.  This  suit  is  on  a  promissory  note,  signed  by 
both  defendants :  the  same  is  now  pending,  and  in  no  way 
settled,  arranged,  or  compromised.  No  costs  have  ever  been 
paid  defendants  in  this  suit.  Greenwood,  one  of  said  defend- 
ants, confessed  a  judgment  to  one  Smyth,  on  the  8th  of  June, 
1843 :  the  amount  of  the  above-mentioned  note  was  then  as- 
certained, and  included  in  said  judgment  for  plaintiff's  benefit 
and  by  consent  of  said  Greenwood  ;  and  said  plaintiff  Smyth 
at  same  time  executed  and  delivered  to  said  plaintiff  a  writing, 
acknowledging  plaintiff  to  be  owner  of  so  much  of  said  judg- 
ment as  was  due  him  on  said  note,  to  which  plaintiff  assented. 
On  the  25th  August,  1843,  one  Medbury  paid  for  said  Green- 
wood the  whole  amount  due  on  said  judgment.  At  that  time, 
plaintiff  and  his  attorney  presented  said  note,  on  which  this 
suit  is  brought,  and  on  which  said  judgment  was  confessed,  to 
said  Greenwood  for  payment.  The  amount  due  plaintiff  on 
said  note  was  then  cast  up,  and  the  same  paid  to  said  plaintiff 
by  said  •  Medbury,  for  said  Greenwood,  who  was  owing  said 
Greenwood,  and  the  note  given  up  to  said  Greenwood  by  said 
plaintiff,  who  expressed  himself  satisfied  :  there  was  no  settle- 
ment or  arrangement  of  this  suit  at  that  time,  in  any  way 
other  than  above  stated.  Defendants'  attorney  has  never  re- 
ceived any  notice  discontinuing  this  suit:  should  have  moved 


NEW-YORK  PRACTICE  REPORTS.  32 

Munn  agt.  Greenwood. 

before,  but  for  the  inability  of  procuring  said  Greenwood's 
affidavit,  who  resides  at  Wisconsin,  and  which  is  now  procured. 
Five  different  individuals  swear  in  substance  to  the  same  facts 
as  above  set  forth  in  regard  to  the  settlement  of  this  suit. 
Plaintiff's  facts :  Some  time  after  the  note  became  due,  Wil- 
liams, who  was  surety,  gave  plaintiff  notice  he  must  collect 
said  note  immediately  ;  or  he,  said  ¥  /lliams,  should  not  hold 
himself  responsible  for  its  payment.  Plaintiff  then  employed 
his  attorney  to  collect  said  note,  who  called  on  said  defendant 
Greenwood  for  payment.  Afterwards  Greenwood  confessed 
the  judgment  before  mentioned,  including  the  amount  of  said 
note  ;  and  plaintiff  took  the  writing  from  said  Smyth  before 
mentioned,  and,  after  consulting  counsel,  found  said  Smyth 
would  not  be  liable  to  pay  him  his  amount  of  said  judgment 
by  said  writing,  unless  the  same  was  collected  of  Greenwood. 
Plaintiff  then  directed  the  prosecution  of  this  suit,  and  the 
writing  was  given  back  to  said  Smyth.  After  suit 
was  commenced,  *Greenwood  came  to  plaintiff  and  [*33] 
said  he  wanted  to  settle  the  suit,  he  did  not  want  any 
more  costs  made  about  it,  and  wanted  to  get  rid  of  it ;  that  he 
honestly  owed  the  money  due  on  the  note,  and  had  made  ar- 
rangements with  one  Medbury  to  pay  it  and  stop  any  further 
proceedings  in  the  suit.  Plaintiff  received  the  money  from 
said  Medbury  for  the  amount  due  on  the  note,  and  gave  up 
the  note  to  said  Greenwood  as  before  stated ;  and  plaintiff  ob- 
served that  it  is  all  settled  now,  and  nothing  more  to  be  done 
about  it ;  to  which  Greenwood  replied,  it  was.  Plaintiff  con- 
sidered the  suit  settled  :  he  had  not  agreed  to  pay  defendant's 
costs,  and  there  was  nothing  said  about  costs  either  way. 
Plaintiff's  attorney  corroborates  the  same  state  of  facts,  and, 
in  addition,  says  Greenwood  expressly  admitted  that  said  suit 
was  settled. 

A.  L.  PRITCHARD,  defendants'1  attorney. 
JOHN  HYDE,  plaintiff's  attorney. 

Decision. — Motion  denied  with  costs. 


33  NEW-YORK  PRACTICE  REPORTS. 

Bradt  agt.  Mount 


BRADT  agt.  MOUNT. 

Facts  and  circumstances  upon  which  plaintiff  was  allowed  to  stipulate  to  try  a 
a  second  time,  and  pay  costa 

October  Term,  1844,  NELSON,  C.  J.,  presiding. 

MOTION  for  judgment  as  in  case  of  nonsuit. 

Defendant's  facts:  Defendant  and  his  witnesses  attended 
the  circuit  on  the  fourth  Monday  of  August,  1844,  prepared 
for  trial  on  the  second  day  of  the  circuit.  Plaintiff  and  his 
attorney  said  they  could  not  nor  should  iiot  try  the  cause  at 
said  circuit,  and  proposed  to  defendant's  attorney  to  let  the 
cause  go  over  the  circuit ;  as  they  could  not  get  ready  for 
trial,  on  account  of  plaintiff's  not  bringing  with  him  a  certain 
deed,  having  forgotten  it.  Defendant's  attorney  refused  to 
agree  to  the  cause  going  over  to  the  next  circuit,  and  insisted 
on  moving  for  judgment  as  in  case  of  nonsuit,  in  case  it  was 
not  tried.  There  was,  at  this  time,  two  or  three  causes  stand- 
ing before  this  on  the  calendar  to  be  tried.  Defendant  and 
plaintiff's  attorney  conversed  together,  to  see  if  an  arrange- 
ment could  be  made  (as  plaintiff  declared  and  conceded  he 
was  unprepared  for  trial)  to  dispense  with  further  attendance 
of  defendant's  witnesses,  so  as  to  lighten  the  amount  of  costs 
for  plaintiff.  Plaintiff's  attorney  offered,  in  the  former  part 
of  the  conversation,  to  stipulate  and  pay  costs,  and  try  at  the 
next  circuit ;  to  which  defendant's  attorney  refused,  on  the 
ground  that  plaintiff  was  then  under  stipulation  to  try  at  the 
present  circuit.  Defendant's  attorney  suggested  and  proposed 
to  plaintiff's  attorney,  the  better  way  would  be  to  serve  him 
with  a  countermand  of  the  notice  of  trial ;  and  he  and  his 
witnesses  would  then  leave,  but  could  not  leave  in  any 
[*34]  way  or  manner  *that  would  expose  the  cause  to  be 
called  on  in  their  absence.  Defendant's  attorney  un- 
derstood plaintiff's  attorney  to  assent  to  the  proposition  ;  and 
plaintiff's  attorney  immediately  drew  a  paper,  which  defend- 


NEW-YORK  PRACTICE  REPORTS.  $4 

Bradt  agt.  Mount 

ant'?  attorney,  while  he  was  drawing  it,  supposed  tc  be  a 
countermand  of  notice  of  trial,  and  presented  it,  which  proved 
to  be  a  stipulation  in  these  words :  "  I  do  herely  stipulate  not 
to  move  this  cause  on  at  the  present  August  term ;  which  was 
dated  and  signed  by  plaintiff's  attorney.  Defendant's  attorney 
expressed  his  surprise,  and  told  plaintiff's  attorney  he  thought 
he  was  going  to  draw  a  countermand.  Defendant's  attorney, 
supposing  nothing  unfair  intended,  would  take  the  raper  of 
fered,  with  the  understanding  that  he  was  not  to  }y,  considered 
as  giving  the  least  assent  to  the  cause  not  being  tried,  or  to 
any  right  of  plaintiff  to  put  the  cause  over  in  this  07  any  man- 
ner, and  that  the  same  should  not  prejudice  his  motion  for 
judgment  as  in  case  of  nonsuit,  which  he  shouLI  of  course 
make :  to  all,  defendant's  attorney  understood  plaintiff's  at- 
torney as  assenting.  Defendant's  attorney,  and  defendant  and 
witnesses,  then  left  the  court.  Issue  was  joined  23d  January, 
18-14 :  the  next  circuit  was  on  the  last  Monday  of  March, 
1844.  On  the  first  day  of  April,  1844,  said  cause  not  having 
been  noticed  for  said  circuit,  defendant's  attorney  received 
from  plaintiff's  attorney  a  stipulation  to  try  at  the  August 
circuit  then  next ;  that  younger  issues  than  the  above  on  the 
calendar  were  tried  at  said  August  circuit.  Plaintiff's  facts : 
This  is  an  action  for  use  and  occupation.  Plaintiff  was  not 
apprised  that  the  title  to  the  premises,  for  which  plaintiff  is 
seeking  to  recover  rent,  would  be  disputed  until  the  second 
day  of  said  August  circuit ;  and  it  was  then  for  the  first  time 
discovered  that  the  grantor  of  plaintiff,  who  held  the  title 
deeds,  had  sent  to  plaintiff  a  wrong  deed,  the  right  deed  being 
then  with  some  person  in  the  county  of  Otsego ;  and  there 
was  not  time  enough  to  get  same  to  be  used  at  said  August 
Cortland  circuit,  1844.  On  the  advice  of  counsel,  plaintiff 
believes  he  cannot  safely  proceed  to  trial  without  said  deed 
from  the  county  of  Otsego,  but  will  be  able  to  try  at  the  next 
Cortland  circuit.  Plaintiff  is  also  advised  by  his  counsel  he 
has  a  good  cause  of  action,  and  that  the  deed  of  plaintiff's 
grantor  aforesaid  will  come  in  question  on  the  trial.  Plain- 
tiff's attorney  states,  the  only  reason  why  said  cause  was  not 


34  NEW-YORK  PRACTICE  REPORTS. 

.._.  Stephens  agt  Ely. 

tried  at  said  August  circuit,  1844,  being  the  absence  of  the 
deed  before  mentioned,  he  informed  defendant's  attorney  of 
the  fact,  and  offered  to  stipulate  and  pay  defendant's  costs,  to 
be  taxed  in  preparing  said  cause  for  trial,  which  defendant' 
attorney  refused. 

H.  F.  MATHER,  defendants  attorney. 
ISAAC  A.  GATES,  plaintiff's  attorney. 

Decision. — Motion  granted,  unless  plaintiff  stipulates  and 
pays  costs. 


[*35]        *HARRISON  STEPHENS  agt.  SMITH  ELY. 

Facts  and  circumstances  upon  which  defendant  was  allowed  an  order  setting 
aside  verdict  and  judgment  upon  terms. 

October  Term,  1844,  NELSON,  C.  J".,  presiding. 

MOTION  to  set  aside  verdict,  rule  for  judgment,  and  judg- 
ment. 

Defendant's  facts :  Defendant  swears  to  merits  in  the  usual 
form.  He  omitted  to  pay  costs  on  amending  his  plea  in  this 
cause,  by  the  advice  of  his  counsel ;  but  is  willing  to  pay 
costs,  if  it  is  necessary,  in  order  to  amend.  He  has  paid  in- 
terest on  the  bond  for  which  this  suit  is  brought,  to  the 
amount  of  $438.54.  The  jury  who  assessed  the  damages  in 
this  cause  on  the  16th  of  Nov.  1843,  did  not  credit  the  amount 
paid  by  $199.82  :  consequently  there  is  an  error  in  the  ver- 
dict to  that  amount.  Defendant's  attorney  states  this  suit  was 
commenced  March,  1843  :  is  an  action  of  debt  on  bond.  De- 
fendant pleaded  two  pleas  to  the  declaration :  first,  general 
issue,  concluding  to  the  country ;  second,  his  discharge  under 
the  bankrupt  act  of  the  United  States,  concluding  with  a  veri- 
fication. Plaintiff  demurred  to  second  plea,  and  defendant 


NKW-YORK  PRACTICE  REPORTS.  35 

Stephens  agt.  Ely. 

joined  in  demurrer.  Cause  noticed  for  argument,  October 
term,  1843,  of  this  court.  Plaintiff  took  judgment  on  the  de- 
murrer by  default  (by  reason  of  defendant's  papers  being 
miscarried)  on  the  31st  October,  1843.  Defendant  pre- 
pared papers  to  move  to  set  same  aside,  and  procured  the 
usual  order  to  stay,  except  plaintiff  might  be  at  liberty  to 
bring  to  trial  the  issue  of  fact  at  the  December  special  term  of 
this  court,  1843.  The  order  taken  by  fault  in  October  term 
previous,  was  vacated  and  set  aside  on  terms :  the  terms  being 
complied  with,  the  order  became  absolute,  on  the  16th 
November,  1843.  The  trial  upon  the  issue  of  fact  was 
brought  on  :  the  jury  found  the  writing  obligatory  to  be  de- 
fendant's deed,  and  assessed  the  damages  to  $1,012.70.  On 
the  same  day,  plaintiff's  attorney  entered  rule  for  judgment, 
nisi,  &c.  Defendant's  attorney  did  not  attend  the  trial  of  said 
issue  of  fact,  because  defendant  never  denied  the  execution  of 
the  bond,  the  general  issue  being  merely  pleaded  as  a  matter 
of  form.  Defendant's  attorney  supposed  plaintiff  had  no  right 
to  assess  his  damages  by  the  jury,  pending  a  stay  of  proceed- 
ings. At  the  July  term,  1844,  of  this  court,  the  issue  of  law 
on  the  demurrer  was  decided  (upon  the  grounds  expressed  in 
the  opinion  of  the  court),  judgment  for  plaintiff  on  demurrer  : 
leave  to  amend  on  usual  terms.  A  copy  of  said  order  was 
served  on. defendant's  attorney  on  the  5th  August,  1844.  On 
the  6th  August,  1844,  defendant's  attorney  procured  an  order 
for  twenty  days'  additional  time  to  file  and  serve  an  amended 
plea,  and  take  notice  of  trial  for  September  circuit,  1844. 
Same  day  served  copy  said  order,  and  notice  that  defendant 
would  amend  his  plea  and  pay  costs,  on  being  taxed  in  pur- 
suance of  the  order  of  this  court.  On  the  10th  August,  1844, 
defendant's  attorney  received  a  copy  of  the  opinion  of 
this  court  thereupon.  Same  *day  defendant's  attor-  [*36J 
ney  served  notice  on  plaintiff's  attorney,  countermand- 
ing his  former  notice,  so  far  as  the  payment  of  costs  was  con- 
cerned, on  the  ground  this  court  had  decided  the  demurrer  in 
favor  of  plaintiff,  on  grounds  not  specified  in  the  demurrer. 
On  the  10th  or  llth  of  August,  1844,  defendant's  attorney 


ftA  NEW-YORK  PRACTICE  REPORTS. 

Stephens  agt  Ely. 

filed  and  served  an  amended  plea  in  this  cause,  in  pursuance 
of  the  order  of  this  court ;  and  same  time  served  an  affidavit 
of  merits,  and  that  the  matters  stated  in  the  plea  overruled, 
and  also  in  the  amended  plea,  were  true  in  substance ;  and 
that  the  plea  overruled  was  pleaded  in  good  faith,  &c.,  con- 
formably to  the  ninety -second  rule  of  this  court.     Defendant's 
attorney,  by  the  eighty-eighth  rule  of  this  court,  advised  de- 
fendant he  had  a  right  to  amend  his  plea  without  paying  costs. 
Plaintiff's  attorney  retained  said  plea  and  affidavits  until  26th 
August,  1844 :  then  returned  same,  with  notice  that  he  re- 
fused to  accept  said  plea.    Defendant's  attorney  immediately 
thereafter  ascertained  plaintiff's  attorney  had  entered  judg- 
ment for  the  debt  mentioned  in  the  declaration,  and  also  for 
$1,534.07  damages  and  costs :  record  filed  26th  August,  1844. 
Costs  of  suit  were  taxed  and  inserted  in  record  at  $90.67, 
without  notice  of  taxation  having  been  served  on  defendant's 
attorney.     Plaintiff's  facts:    The  only  indorsement  on  the 
bond  is  a  receipt  of  November  1,  1841,  for  $250.05  for  six 
months'  interest  due  thereon  ;   which  sum  is  not  included 
in  the  assessment  of  damages,  and  believes  that  sum  to  be 
all  that  has  been  paid  by  defendant  on  said  bond.     Plaintiff 
resides  in  Montreal :  his  attorney  has  not  been  able  to  communi- 
cate with  him  since  the  receipt  of  the  motion  papers  in  relation 
thereto.   Declaration  is,  the  usual  action  of  debt  with  breaches 
assigned ;  among  them  the  non-payment  of  the  semi-annual 
interest  due  May  1,  1842,  and  the  forfeiture  of  the  principal 
thereon :  copy  declaration  served  March,  1843.    No  plea  of 
payment  or  set-off  has  been  put  in  by  defendant :  three  pleas 
of  defendant's  discharge  in   bankruptcy  have  been  served. 
Several  causes  of  demurrer  were  taken   to  the  first  plea,  and 
the  same  was  amended  accordingly.     Several  causes  of  de- 
murrer were  taken  to  the  second  plea,  and  was  amended  by 
this  court  on  motion.     The  third  plea,  the  demurrer  was  taken 
and  decided  for  plaintiff  at  last  July  term.    26th  October, 
1843,  notice  of  trial  and  inquest  of  the  issue  in  fact  was 
served  for  second  Monday  in  November,  1843 ;  at  which  time 
the  issue  of  fact  was  brought  to  trial,  and  contingent  damages 


NEW-YORK  PRACTICE  REPORTS.  36 

Stephens  agt.  Ely. 

assessed  on  the  issue  of  law.  On  6th  December,  1843,  de- 
fendant's motion  to  set  aside  the  plaintiff's  judgment  on  the 
demurrer,  taken  by  default  at  October  term,  1843,  was  granted, 
OD  defendant's  paying  costs  of  said  judgment  and  subsequent 
proceedings  thereon,  and  costs  of  opposing  motion.  On  op- 
posing the  motion,  this  court  was  apprised  of  the  trial 
*of  the  issue  of  fact  therein,  and  the  assessment  of  [*37] 
damages  on  the  issue  in  law,  and  the  costs  thereof 
asked  for,  the  court  stated  the  verdict  must  stand,  and  the 
costs  thereof  abide  the  event  of  the  issue  in  law.  Plaintiff's 
attorney,  on  receiving  notice  from  defendant's  attorney  of 
August  6th,  1844,  to  amend  plea  and  pay  costs,  on  7th  August 
served  defendant's  attorney  with  a  bill  of  costs  on  demurrer, 
and  notice  of  taxation  for  12th  August.  On  26th  August 
(the  day  the  supreme  court  commissioners'  order  expired), 
plaintiff's  attorney  had  costs  regularly  taxed,  and  perfected 
judgment  and  served  another  bill  of  costs  and  notice  of  tax- 
ation for  30th  August.  Same  day,  costs  were  taxed  at  same 
amount  as  before.  Plaintiff's  attorney  has  been  unable  to 
find  any  amended  plea  of  defendant's  filed  in  this  cause. 
Plaintiff's  attorney  insists  that  defendant,  in  avoiding  two 
demurrers  for  the  same  cause,  cannot  swear  to  any  amended 
plea  alleging  that  said  defendant  was  a  bankrupt  at  the  time 
of  the  said  application  in  bankruptcy.  Defendant's  amended 
plea,  served  with  papers  for  the  motion  to  set  aside  judgment 
in  this  cause  at  the  last  term,  does  not  conform  to  the  decision 
of  this  court. 

W.  SKIDMORE,  defendants  attorney. 
"W.  H.  TAGGARD,  plaintiffs  attorney. 

Decision. — Verdict  and  judgment  set  aside  on  payment  of 
costs  of  circuit  only,  with  leave  to  defendant  to  plead  within 
twenty  days. 

VOL.  I.  4 


38  NEW-YORK  PRACTICE  REPORTS. 

Hurd  agt  Merritt 

[*38]    *SAMUEL  W.  HURD  agt.  JOHN  J.  MERRITT. 
Cons. 

December  Term,  1844,  BRONSON,  «/!,  presiding. 

MOTION  by  defendant  for  relaxation  of  costs. 

The  facts  in  the  case  are  as  follows :  The  action  was  tort, 
and  after  issue  joined,  was  by  stipulation  of  parties,  referred. 
It  was  stipulated  that  a  judgment  of  the  court  might  be  en- 
tered on  the  report  of  the  referees,  in  the  same  manner  and 
to  the  same  effect  as  if  the  cause  were  properly  referable ; 
after  the  referees  reported,  the  defendant  served  his  affidavit 
with  a  view  to  move  to  set  aside  the  report ;  the  plaintiff 
served  his  counter  affidavit,  and  the  referees  reported  a  state- 
ment of  the  evidence  and  points  made  before  them.  The 
cause  was  put  on  the  calendar  at  the  last  May  term,  and  was 
stricken  therefrom  because  the  defendant  had  not  served  the 
plaintiff  with  a  copy  of  the  papers,  which  it  was  his  duty  to 
furnish  the  court  pursuant  to  the  48th  rule.  Defendant  ob- 
jected to  the  allowance  of  any  costs  except  for  the  judgment 
record  and  the  fees  of  entering  up  the  judgment,  insisting 
that  the  reference  was  a  submission  to  arbitration,  and  that 
the  report  of  the  referees  was  a  mere  award  of  arbitrators. 

The  court  overruled  the  objection,  and  decided  that  costs 
were  allowable  the  same  as  if  the  cause  were  referable ;  that 
the  plaintiff  had  merely  opposed  proceedings,  which  the  de- 
fendant should  not  have  taken.  The  following  items  were 
stricken  out  of  said  bill :  Counsel  arguing  at  special  term, 
non-enumerated  motion,  opposed,  $5 ;  counsel  arguing  at  spe- 
cial term,  non-enumerated  motion,  not  opposed,  $2 ;  attorney's 
fee  for  proof  of  service  of  notice  of  trial  and  inquest,  50cts. ; 
for  proof  of  service  of  notice  of  hearing  for  defendant  and 
referees,  50cts. ;  for  drawing  subpoena  writs  and  tickets 
on  three  adjournments  of  the  trial  before  referees,  $6;  for 
service  of  plaintiff's  counter  affidavit  on  motion  to  set 


NEW-YORK  PRACTICE  REPORTS.  39 

Hurd  agt  Merritt. 

*aside  report  of  referees,  25cts.  ;  for  proof  of  service  [*39] 
of  same,  50cts.  ;  for  preparation  of  papers  to  oppose 
motion  of  defendant  for  leave  to  have  referees'  report  evidence, 
plaintiff  consenting  that  defendant's  default  for  not  giving  no- 
tice of  settling,  facts  should  be  waived,  $7  ;  for  service  of 
order  of  Judge  Kent  revoking  a  former  order  made  by  him 
with  notice,  25cts.  ;  for  proof  of  service  of  same,  50cts.  ;  re- 
ferees drawing  and  copying  report  of  amount  due  plaintiff, 


M.  T.  KEYNOLDS,  defendants  counsel. 
M.  MITCHELL,  defendants  attorney. 
T.  NELSON,  plaintiffs  counsel. 

I   •*.  *V 

W.  NELSON,  plaintiff  ?s  attorney. 

Decision.  —  Motion  denied  .on  plaintiff's  deducting  $22.87 
from  the  bill  as  taxed. 


SAMUEL  W.  HURD  agt.  JOHN  J.  MERRITT. 
COOTS. 

December  Term,  1844,  BRONSON,  J".,  presiding. 

MOTION  by  plaintiff  for  a  retaxation  of  costs,  and  that  he  be 
allowed. to  charge  in  his  bill  of  costs,  interest  on  the  report  of 
referees  from  the  date  of  their  report  to  the  date  of  the 
judgment. 

PER  CURIAM. — This  was  an  action  of  tort,  and  the  plaintiff 
has  no  right  to  tax  interest  with  costs ;  that  the  section  3d  on 
page  508  of  Session  Laws  of  1844,  is  to  operate  prospectively ; 
and  that  as  the  report  of  the  referees  in  this  cause  was  before 
the  passage  of  that  act,  the  act  does  not  apply,  although  judg- 
ment was  not  perfected  until  the  act  was  passed. 


39  NEW-YORK  PRACTICE  REPORTS. 

Claiborne  agt  Boker. 

M.  T.  REYNOLDS,  defendants  counsel 
M.  MITCHELL,  defendant's  attorney. 
T.  NELSON,  plaintiff's  counsel. 
W.  NELSON,  plaintiff's  attorney. 

Decision. — Motion  denied  with  costs. 


JOHN  CLAIBORNE  agt.  HERMAN  BOKER  et  al. 

Motion  for  judgment  as  in  case  of  nonsuit,  because  security  for  costs  not  filed, 
irregular. 

December  Tbrm,  1844,  BRONSON,  «/".,  presiding. 
MOTION  by  defendant  for  judgment  as  in  case  of  nonsuit, 
by  reason  of  the  plaintiff's  failing  to  file  security  for  costs. 

PER  CURIAM. — Denied  on  the  ground /that  the  motion  is 
irregular.  It  should  have  been  for  an  absolute  order  that 
plaintiffs  file  security  for  costs. 

P.  CAGGER,  plaintiff's  counsel. 
C.  G.  ECKELL,  defendant's  attorney. 
A.  S.  GARR,  plaintiff's  attorney. 

Decision. — Motion  denied  with  costs,  and  ordered  that  plain- 
tiff file  security  for  cost  in  twenty  days. 


NEW-YORK  PRACTICE  REPORTS.  40 

Pier  agt.  Page. 


*HENRY  PIER  agt.  ALBERT  PAGE.  [*40] 

Where  the  circuit  judge  permits  a  cause  to  be  passed  for  the  day  without  preju- 
dice to  the  plaintiff,  where  he  is  ready  when  the  cause  is  called,  and  the  de- 
fendant not ;  the  defendant  is  not  entitled  to  judgment  as  hi  case  of  nonsuit, 
•when  no  opportunity  is  afterwards  afforded  to  try. 

December  Term,  1844,  BRONSON,  J.,  presiding. 
MOTION  by  defendant  for  judgment  as  in  case  of  nonsuit 
The  cause  was  called  on  the  first  day  of  the  circuit,  no  one 
answering  for  defendant;  plaintiff's  counsel  said  to  circuit 
judge,  in  consideration  of  defendant's  distant  residence,  that 
he,  although  ready  to  try,  would  permit  the  cause  to  be  passed 
for  the  day ;  provided  it  should  not  prejudice  the  plaintiff,  or 
in  any  way  make  plaintiff  liable  for  defendant's  costs  of  pre- 
paring for  trial ;  and  the  judge  considered  the  cause  as  passed 
for  the  day  only,  and  without  prejudice  to  plaintiff.  An  in- 
dictment consumed  the  residue  of  the  circuit,  and  the  cause 
was  not  again  called. 

PER  CURIAM. — The  ordering  of  the  judge  that  cause  should 
pass  without  prejudice  to  the  plaintiff  excused  the  plaintiff 
for  not  trying. 

C.  M.  JENKINS,  defendants  counsel 

B.  W.  FRANKLIN,  defendant's  attorney. 
S.  P.  NASH,  plaintiff's  counsel. 

C.  W.  CAMPBELL,  plaintiff's  attorney. 

Decision. — Motion  denied — costs  to  abide  event. 


40  NEW-YORK  PRACTICE  REPORTS. 

Fowler  agt.  Ha/. 


JAMES  FOWLER  agt.  JAMES  HAY. 

Defendant's  counsel  engaged  in  argument  in  another  court  when  inquest  was 
taken  by  plaintiff,  is  sufficient  excuse,  to  set  aside  on  terms. 

December  Term,  1844,  BRONSON,  J.t  presiding. 

MOTION  by  defendant  to  set  aside  inquest  and  subsequent 
proceedings. 

The  cause  was  called  in  its  regular  order  on  the  calendar 
and  inquest  taken  at  the  New-  York  circuit  ;  defendant's  coun- 
sel was  at  the  time  engaged  in  an  argument  in  the  superior 
court.  Defendant  had  served  and  filed  an  affidavit  of  merits 
and  when  inquest  was  taken  was  after  his  counsel  and  in- 
tended to  try. 

PER  CURIAM.  —  The  defendant's  counsel  being  engaged 
in  argument,  in  another  court,  is  a  sufficient  excuse  to  set 
aside  on  terms. 


J.  T.  BRADY,  defendants  counsel 
J.  N.  STONE,  defendant's  attorney. 
E.  MORRILL,  plaintiff's  attorney. 

Decision.  —  Motion  granted  on  payment  of  costs  of  circuit 
and  of  opposing  motion. 


THOMAS  B.  WATERS  agt  JOHN  HOWARD  et  al 

• 

Goers. 

December  Term,  1844,  BRONSON,  J:,  presiding. 

MOTION  by  plaintiff  for  retaxation  of  costs. 

The  plaintiff  attached  a  vessel,  for  materials ;  a  bond  was 


NEW-YORK  PRACTICE  REPORTS.  40 

______^_^_ — ^— — _ — — — — — — — ^^_ _•       ' 

Barker  agt.  McBride. 

given  by  the  defendants,  to  release  her  pursuant  to  statute, 
and  the  bond  sued.  The  plaintiff  inserted  in  his  bill  of  costs 
in  the  suit  on  the  bond,  the  costs  on  the  attachment,  which 
the  taxing  officer  refused  to  allow,  on  the  ground  that  these 
costs  should  have  been  assessed  by  the  jury,  as  damages  in 
the  suit. 

PER  CURIAM.— *The  Statute  (Session  Laws  1840,     [*41] 
p.  134),  is  conclusive. 

E.  C.  BENEDICT,  plaintiff's  counsel. 

BURR,  BENEDICT  &  BEEBE,  plaintiff's  attorneys. 

EB.  CLARK,  defendants'  counsel. 

CLARK  &  PATTISON,  defendants'  attorneys. 

Decision. — Motion  granted — no  costs  given  where  the  court 
overrule  the  taxing  officer. 


ABEL  HARKER  agt.  ELISA  MCBRIDE,  &c. 
/ 

Defaults  taken  on  the  first  or  second  days  of  the  general  term  in  October  at 
Rochester,  in  causes  low  down  hi  the  calendar,  will  be  opened  on  terms, 
where  counsel  opposed,  residing  at  a  distance,  did  not  arrive  in  season  to  argue. 

December  Term,  1844,  BRONSON,  J.t  presiding. 

MOTION  by  plaintiff  in  error  to  open  the  default  taken  in 
said  causes  at  the  last  October  (general)  term,  held  at 
Eochester. 

Issue  joined  in  these  causes  15th  July  last ;  plaintiff's  attor- 
ney had  omitted  to  prepare  for  the  argument  on  the  first  day 
of  the  term,  believing  from  the  dates  of  the  issues,  that  the 
causes  would  stand  low  on  the  calendar,  and  consequently  not 
be  reached  the  first  day  ;  his  papers  were  ready,  and  he  in- 
tended to  have  his  counsel  argue  them,  at  the  October  term ; 


41  NEW-YORK  PRACTICE  REPORTS. 

Dunn  agt.  Mason. 

he  had  offered  defendant's  attorney  costs  of  default  and  subse- 
quent proceedings,  to  have  default  opened,  and  offered  to 
argue  them  or  submit  them,  at  the  October  term.  Defend- 
ants' counsel  insisted  that  excuse  must  be  given  for  default  in 
not  being  ready  (oth  Hill,  509) ;  defendants  were  not  bound 
to  waive  defaults.  (12  Wend.  198.) 

The  judge  said  the  court  at  every  term  held  at  Rochester 
had  been  through  the  calendar  on  the  first  or  second  day  of 
the  term.  But  as  this  seemed  not  to  be  generally  known 
among  the  profession  the  defaults  must  be  opened  on  terms. 

JAMES  MONCRIEF,  plaintiff's  attorney. 
W.  H.  TAGGARD,  defendants1  attorney. 

Decision. — Motion  granted  on  payment  of  costs  of  October 
term  and  costs  subsequent  to  said  term  and  costs  of  opposing 
motion. 


JAMES  DUNN  agt  GEORGE  W.  MASON  et  al 

If  costs  are  asked  on  a  motion  to  change  venue,  costs  will  be  given  against  the 


mover. 


December  Term,  1844,  BRONSON,  J.,  presiding. 
MOTION  for  defendants  to  change  venue,  with  costs. 

PER  CURIAM. — In  consequence  of  defendants'  asking  costs  on 
this  motion,  they  must  pay  costs. 

GRAY  &  HATHAWAY,  defendants1  attorneys. 
GEORGE  B.  WOOD,  plaintiffs  attorney. 

Decision. — Motion  granted  on  payment  of  costs  of  opposing 
motion. 


NEW-YORK  PRACTICE  REPORTS.  42 
Masters  agt.  Bailey. 


^NICHOLAS  M.  MASTERS  et  al  agt.  JOHN  H.  BAILEY,    [*42] 

Jr.  et  al. 

Where  no  leave  is  given  at  the  trial  of  the  cause  to  turn  a  case  into  a  bill  of  ex- 
ceptions, for  the  purpose  of  going  to  the  court  of  errors,  it  cannot  be  given 
afterwards. 

December  Term,  1844,  BRONSON,  J".,  presiding. 

MOTION  by  defendants  for  leave  to  turn  the  case  into  a  bill 
of  exceptions.  On  the  trial  of  this  cause,  a  verdict  was  taken 
for  plaintiffs,  and  exceptions  were  taking  to  the  ruling  and 
charge  of  the  circuit  judge,  and  it  appears  that  counsel  on  both 
sides  supposed  the  cause  would  be  carried  to  the  court  of  er- 
rors, for  final  decision.  It  seems  defendants'  attorneys  pre- 
ferred having  the  cause  argued  before  this  court  as  a  case,  and 
it  was  -so  settled ;  but  supposed  there  was  a  clause  in  it  for 
leave  to  turn  it  into  a  bill  of  exceptions,  until  the  decision  of 
this  court,  when  defendants'  counsel  learned  there  was  none. 

PER  CURIAM. — This  being  rather  a  hard  case  for  defend- 
ants, no  costs  are  allowed. 

M.  T.  EEYNOLDS,  defendants'  counsel 
KIMBALL  &  HINSDALE,  defendants1  attorneys. 
N.  HILL,  JR.,  plaintiffs'  coun  < 7. 
McVEAN  &  REYNOLDS,  plaintiffs'  attorneys. 

Decision. — Motion  denied,  without  costs. 


42  NEW-YORK  PRACTICE  REPORTS. 

Smith  agt  Roberts. 


JOHN  F.  SLOCUM  agt  TBUMAN  WATKINS. 

Where  plaintiff  was  so  sick  as  to  be  unable  to  attend  to  business,  when  cause 
might  hare  been  tried  at  the  circuit,  held  sufficient  excuse  to  stipulate. 

December  Term,  1844,  BRONSON,  J.,  presiding. 

MOTION  by  defendant  for  judgment,  as  in  case  of  nonsuit. 

Issue  was  joined  4th  April  last ;  circuit  held  23d  Septem- 
ber last.  Plaintiff  did  not  notice  the  cause  for  trial.  The  ex- 
cuse of  plaintiff's  attorney  for  not  noticing  was,  that  he  was 
sick,  and  unable  to  attend  to  business ;  was  confined  to  his 
room  for  five  weeks  previous  and  up  to  the  time  of  the  circuit 

W.  M.  ALLEN,  defendant's  counsel. 

E.  J.  EICHARDSON,  defendant's  attorney. 

G.  A.  YEOMANS,  plaintiff's  attorney. 

PER  CURIAM. — Excuse  is  sufficient  for  stipulation. 

Decision. — Motion  granted,  unless  plaintiff  stipulate  and  pay 
costs. 


WALTER  SMITH  agt  DAVID  EGBERTS  et  al.,  Commis- 
sioners, &c. 

Defendant,  on  showing  an  excuse  for  not  pleading,  and  plaintiff  not  showing 
when  the  declaration  was  served,  default  was  set  aside,  and  defendant  allowed 
to  plead. 

December  Term,  1844,  BRONSON,  J.,  presiding. 
MOTION  by  defendant  to  set  aside  default  and  subsequent 
proceedings. 
The  defendants'  grounds  of  defence  are  set  out  at  length ; 


NEW-YORK  PRACTICE  REPORTS.  42 

Furlong  agt.  Munn. 

at  tlie  time  of  service  of  the  declaration  on  defendant  Roberta 
(who  was  the  only  one  served),  he  was  confined  to  his  house 
with  inflammation  of  the  eyes,  and  could  not  read,  and  was 
so  confined  and  unable  to  read  for  more  than  twenty 
*days  subsequent  to  the  service  of  the  declaration.     [*43] 
The  plaintiff's  papers  do  not  show  the  time  of  the  ser- 
vice of  the  declaration. 


E.  H.  ROSEKRANS,  defendants'  counsel. 
ROSEKRANS  &  FARLIN,  defendants1  attorneys. 
A.  T.  WILSON,  plaintiff's  counsel  and  attorney. 

PER  CURIAM.— The  plaintiff's  opposing  papers;  not  show- 
ing the  time  of  the  service  of  the  declaration,  motion  must  be 
granted. 

Decision. — Motion  granted  with  costs.  Defendants  to  have 
ten  days  to  plead. 


NANCY  J.  FURLONG  agt.  STEPHEN  B.  MUNN. 

The  appraised  valuation  of  property  by  appraisers  at  the  time  of  the  distress,  is 
the  proper  sum  to  govern  the  penalty  of  the  replevin  bond. 

December  Term,  1844,  BRONSON,  J.,  presiding. 

MOTION  by  defendant  that  the  penalty  of  the  replevin  bond 
in  this  cause  be  increased,  or  for  a  new  appraisement  before 
the  sheriff  of  New-York. 

Defendant's  facts ;  The  property  replevied  was  seized  by 
defendant  for  $900  rent.  It  consists  of  millinery  articles. 
The  plaintiff  stated  to  divers  persons  that  the  property  was 
worth  about  $1,000.  The  appraisal  before  the  sheriff  was 
made  by  the  plaintiffs  attorney,  who  valued  the  property  at 
Plaintiff's  facts :  Plaintiff  is  a  sub-tenant.  Her  prop- 


43  NEW-YORK  PRACTICE  REPORTS. 

Riley  agt  Van  Amrange. 

erty  and  that  of  the  original  were  distrained  on.  Her  part 
was  appraised  at  $293,  and  the  other  part  at  $600.  This  ap« 
praisal,  made  by  the  appraisers  on  the  distress,  was  the  basis 
upon  which  plaintiff's  attorney  made  his  valuation. 

P.  J.  JOACHIMSSEN,  defendant's  counsel. 
WOODRUFF  &  GOODMAN,  defendant's  attorneys. 
T.  HASTINGS,  plaintiff's  counsel. 
E.  G.  RANSOM,  defendant's  attorney. 

PER  CURIAM. — The  appraised  value  is  that  made  by  the  ap- 
praisers, who  acted  on  the  part  of  the  defendant.  The  motion 
is  denied,  but  as  it  is  rather  undesirable  to  allow  the  plaintiff's 
attorney  to  be  a  witness  upon  this  occasion,  I  shall  not  give 
costs  to  either  party. 

Decision. — Motion  denied  without  costs. 


JOSEPH  S.  RILEY  agt.  WILLIAM  F.  VAN  AMRANGE. 

Where  special  pleas  are  deemed  frivolous,  they  should  bo  noticed  as  frivolous, 

not  demurred  to. 
Terms  upon  which  default  opened,  taken  at  the  general  term  in  Rochester. 

December  Term,  1844,  BRONSON,  J.,  presiding. 

MOTION  by  defendant  to  set  aside  default,  taken  against  him 
at  the  October  (general)  term. 

The  declaration  in  this  cause  is  on.  a  judgment  against  de- 
fendant, obtained  in  the  state  of  Pennsylvania,  and  usual 
money  counts  and  count  on  account  stated,  added.  Defend- 
ant pleaded  general  issue,  nul  tiel  record  and  four  special  pleas. 
Plaintiff  replied,  and  joined  issue  to  two  pleas,  and 
[*44J  demurred  and  assigned  causes  of  demurrer  *to  the 
other  two.  Defendant's  attorney  wrote  to  his  counsel 


NEW-YORK  PRACTICE  REPORTS.  44 

Lee  agt.  Tompkins. 

at  Eochester,  to  take  charge  and  argue  the  cause  for  him,  and 
forwarded  by  mail  to  him  the  papers,  but  they  failed  to  reach 
him  until  a  default  had  been  taken  on  the  21st  October  last. 
Defendant's  attorney  states  he  has  had  the  whole  management 
of  the  cause  for  defendant,  and  that  defendant  has  a  good  de- 
fence on  the  merits  to  said  plaintiff's  cause  of  action,  and  that 
the  pleas  pleaded,  and  to  which  plaintiff  has  demurred,  are 
good  and  sufficient  in  law.  Plaintiff's  counsel  would  not  con- 
sent to  open  the  default,  because  he  believed  the  pleas  de- 
murred to,  plainly  frivolous. 

E.  TOWNSEND,  defendant's  counsel  and  attorney. 
E.  L.  JoiCE,  plaintiff's  counsel. 
PETER  WILSON,  plaintiff's  attorney. 

PER  CURIAM. — Plaintiff  ought  to  have  noticed  the  pleas  as 
frivolous.  The  judge  also  made  a  similar  remark,  as  in  the 
case  of  Harker  agt.  McBride,  and  hoped  counsel  would  under- 
stand that  it  would  be  necessary  to  be  ready  at  the  commence- 
ment of  the  term,  when  the  court  was  held  at  Eochester. 

Decision. — Motion  granted  on  payment  of  costs  of  default, 
and  subsequent  proceedings  and  costs  of  opposing  motion. 


FREDERICK  E.  LEE  agt.  GEORGE  C.  TOMPKINS  et  al 

Where  defendants,  during  two  years  succeeding  the  confession  of  judgment, 
repeatedly  promised  plaintiff  to  pay  it,  and  after  two  years  fi.  fa.  was  first 
issued,  a  motion  by  defendants  to  set  it  aside  for  that  reason  was  denied. 

December  Term,  1844,  BRONSON,  J".,  presiding. 
MOTION  by  defendants  to  set  aside  the  fieri  facias  issued  in 
this  cause. 
Defendants  showed  that  fi.  fa.  was  issued  more  than  two 


44  NEW-YORK  PRACTICE  REPORTS 


Deeth  agt.  Purdy. 


years  after  judgment  entered,  and  no  sci.  fa.  was  issued,  and 
was  the  only  fi.  fa.  ever  issued.  The  plaintiff  replied,  by 
showing  that  defendants  volunteered  a  confession  of  judgment 
in  this  cause,  and  at  the  same  time  requested  no  further  pro- 
ceedings to  be  taken  by  plaintiff ;  during  the  two  years  suc- 
ceeding the  entry  of  judgment  the  defendants  continually 
promised  to  pay  plaintiff's  claim.  Plaintiff's  counsel  argMtt 
that  as  the  suit  was  an  amicable  one,  and  a  stay  of  execution 
was  requested,  and  as  defendants  continually  promised  to  pay 
plaintiff,  there  was  no  surprise  on  defendants,  and  the  reason 
for  issuing  a  scieri  facias  did  not  apply.  (Vide  19  J.  R.  173.) 

JOHN  E.  DEVELIN,  defendants'  counsel  and  attorney. 
I.  F.  COWDREY,  plaintiffs  counsel  and  attorney. 

Decision. — Motion  denied,  but  without  costs. 


[*45]  *SYLVANUS  G.  DEETH  agt.  EMERY  PURDY  et  al 

Terms  upon  which  plaintiff  set  aside  an  inquest,  taken  by  defendants  in  a  re- 
plevin case. 

December  Term,  1844,  BRONSON,  J.,  presiding. 

MOTION  by  plaintiff  to  set  aside  inquest  and  verdict. 

This  was  an  action  of  replevin,  an  inquest  was  taken  by 
defendants  at  the  New- York  September  circuit  last  Plaintiff 
could  not  try  the  cause  on  account  of  the  absence  of  a  mate- 
rial witness,  and  showed  that  no  notice  of  trial  or  inquest  had 
been  served  by  defendants  for  said  circuit.  Plaintiff  states 
he  has  a  good  cause  of  action ;  showed  that  a  stipulation  was 
entered  into  between  the  attorneys,  for  the  respective  parties, 
in  writing,  that  the  cause  should  be  considered  noticed  on 
both  sides.  Plaintiff's  attorney  did  not  keep  a  copy  of  it, 
but  immediately  entered  it,  in  substance,  in  his  register ;  it 


NEW-YOKE  PRACTICE  REPORTS.  45 

Durant  agt.  Cook. 

was  after  the  time  had  gone  by  for  noticing  the  cause,  that 
the  stipulation  was  entered  into. 

P.  GANSEVOORT,  defendants1  counsel. 
C.  NAGLE,  defendants'  attorney. 
B.  TOWNSEND,  plaintiffs  counsel. 
E.  M.  TYSEN,  plaintiff's  attorney. 

Decision. — Motion  granted  on  payment  of  costs  of  circuit 
and  all  subsequent  costs,  and  costs  of  opposing  motion. 


GEORGE  W.  DURANT  agt.  SQUARE  COOK  et  al. 

Defendant's  motion  to  set  aside  an  inquest  on  terms,  denied,  where  his  affidavit 
of  merits  filed  at  the  circuit  was  defective,  and  a  copy  of  the  same  used  on 
the  motion. 

December  Term,  1844,  BRONSON,  J".,  presiding. 

MOTION  by  defendants  to  set  aside  inquest  and  subsequent 
proceedings. 

Inquest  taken  regularly  at  the  last  October  circuit,  Albany, 
by  plaintiff.  Defendants'  attorney  wrote  to  plaintiff's  attorney 
after  the  cause  had  been  noticed,  to  consent  to  have  the  cause 
set  down  for  same  day  in  the  second  week  of  the  circuit,  or 
to  have  it  go  over  the  circuit,  as  it  stood  low  down  on  the 
calendar.  Plaintiff's  attorney  declined,  but  thought  there 
might  be  criminal  business  sufficient  to  last  one  week  at  least, 
and  advised  defendants'  attorney  to  have  some  one  at  the  fore 
part  of  the  circuit  to  prevent  a  default.  Defendants'  attor- 
ney's clerk  attended  the  first  day  of  the  circuit,  and  filed  an 
affidavit  of  merits.  On  the  third  day  of  the  circuit,  inquest 
was  taken  by  default.  Defendants'  counsel  used  on  this  mo- 
tion a  copy  of  the  affidavit  of  merits  filed  to  prevent  an  in- 
quest, the  substance  of  which  is  as  follows,  "  that  they  have 
a  good  and  substantial  defence,  upon  the  merits  in  the  above 


45  NEW-YORK  PRACTICE  REPORTS. 

Burnham  agt.  Smith. 

entitled  cause,  to  the  promissory  note  on  which  this  action  is 
brought,  thereof  as  they  are  advised  by  their  said  coun- 
sel," &c. 

M.  SANFORD,  defendants?  counsel  and  attorney. 
C.  M.  JENKINS,  plaintiff  's  counsel. 
J.  JENKINS,  plaintiff's  attorney. 

PER  CURIAM. — The  affidavit  of  merits  would  not  be  good, 

if  made  for  this  motion,  and  as  there  is  no  merits 

[*46]    sworn  to  by  defendants  on  this  *motion,  and  the 

plaintiff  being  regular,  the  defendants  cannot  be  let 

in  on  terms. 

Decision. — Motion  denied  with  costs,  without  prejudice. 


GIDEON  BURNHAM  et  al.  agt.  EEBECCA  SMITH. 

Where  a  plaintiff,  after  a  stipulation  that  he  would  reply  before  trial,  entered 
into  a  negotiation  and  promised  to  reply  within  a  short  time,  but  did  not; 
held,  that  he  must  pay  costs,  on  setting  aside  defendant's  judgment  for  want 
of  a  reply. 

December  Term,  1844,  BRONSON,  J.,  presiding. 

MOTION  by  plaintiff  to  set  aside  judgment  for  costs  against 
plaintiff  for  not  replying  to  defendant's  special  plea. 

Plaintiffs'  facts :  Action  on  a  promissory  note ;  plea  the  gen- 
eral issue  and  statute  of  limitations.  In  June,  1844,  the  par- 
ties stipulate  that  issue  should  be  considered  as  joined,  and 
that  plaintiff  might  put  in  a  replication  at  any  time  before  the 
trial.  On  the  7th  October  the  defendant  enters  the  plaintiffs' 
default  for  not  replying.  Defendant's  facts :  That  subsequent 
to  the  stipulation,  plaintiffs'  attorney  promised  to  put  in  a  re- 
plication within  a  short  time ;  he  failed  to  do  so.  A  rule  was 
entered  to  reply  in  twenty  days,  and  not  replying  the  default 
was  entered. 


NEW-YORK  PRACTICE  REPORTS.  46 

Handy  agt.  Empie. 

M.  T.  REYNOLDS,  defendant's  counsel. 
JOHN"  COOKE,  defendant's  attorney. 
P.  J.  JOACHIMSSEN,  plaintiffs'  counsel. 
HIRAM  BARNES,  plaintiffs'  attorney. 

PER  CURIAM. — In  consequence  of  the  plaintiffs'  attorney 
negotiating  subsequent  to  the  stipulation,  he  must  pay  costs. 

Decision. — Motion  granted  on  payment  of  costs  of  default, 
and  of  entering  judgment  and  costs  of  opposing  motion. 
Plaintiffs  to  have  leave  to  reply  in  twenty  days  after  service 
of  this  rule. 


MARVIN  HANDY  agt.  JOHN  A.  EMPIE. 

Where  an  individual  takes  a  bond  and  mortgage  to  secure  a  debt,  and  subse- 
quently wishes  to  raise  a  part  of  the  amount,  and  instead  of  selling  the  bond 
and  mortgage,  applies  to  the  individual  who  executed  them,  and  gets  his  prom- 
issory note  for  just  the  amount  wanted,  which  note  is  discounted  by  a  third 
person  for  more  than  1  per  cent,  per  annum;  held,  no  usury. 

December  Term,  1844,  BRONSON,  J!,  presiding. 

MOTION  by  defendant  to  set  aside  judgment  and  execution 
on  the  ground  of  usury. 

Defendant's  facts :  Previous  to  March,  1839,  one  Demmon 
Lowell  states  he  took  a  bond  and  mortgage  of  $1,380 
from  Adam  Empie,  to  secure  part  of  the  purchase  money  of 
a  farm  sold  by  said  Lowell  to  said  A.  Empie ;  an  instalment 
became  due  on  said  bond  and  mortgage  in  the  spring  of  1839, 
which  said  A.  Empie  was  unable  to  pay,  and  Lowell  applied 
to  plaintiff  to  buy  the  bond  and  mortgage ;  plaintiff  declined, 
but  proposed  to  said  Lowell  if  he  would  get  Adam  Empie's 
note  for  $500,  and  would  make  a  discount  of  $25  on  it,  he 
would  let  said  Lowell  have  the  money.  Lowell  stated 
the  proposition  to  Empie,  to  which  he  agreed ;  and  said 
YOL.  I.  5 


47  NEW-YORK  PRACTICE  REPORTS. 

Handy  agt  Empie. 

[*47]  Lowell  again  saw  plaintiff  and  informed  him  *that  A. 
Empie  had  agreed  to  it ;  the  plaintiff  thereupon  drew 
a  note  for  $500,  for  said  A.  Empie  to  sign,  payable  to  said 
plaintiff  or  bearer  with  interest,  payable  a  short  time  after  date. 
Lowell  took  the  note  to  Empie,  which  was  signed  by  him,  and 
he  thinks  by  Levi  Empie  as  surety ;  about  3d  April,  1889, 
Lowell  presented  the  note  to  plaintiff,  who  refused  to  cash  it 
unless  he  deducted  $28,  to  which  Lowell  consented  and  re- 
ceived from  plaintiff  $472  for  the  note.  Adam  Empie  states, 
that  on  the  5th  May,  1841,  the  interest  on  this  note  was  paid 
to  plaintiff^  and  a  new  note  of  $550  given,  including  the  prin- 
cipal of  this  note  of  $500  and  $50  due  on  another  note  to 
plaintiff  which  $550  note  was  signed  by  Levi,  David,  John 
A.,  and  Jacob  Empie,  payable  to  plaintiff  or  bearer,  and  the 
old  notes  given  up  to  Levi  Empie  and  destroyed.  On  or 
about  27th  January,  1843,  John  A.  Empie  gave  plaintiff  a 
bond  and  warrant  of  attorney  to  secure  the  $550  note  and 
interest,  and  judgment  was  thereupon  entered  up,  which  is 
the  judgment  sought  to  be  set  aside  on  this  motion.  Plaintiff's 
facta :  Plaintiff  states  that  Lowell  offered  to  sell  him  a  bond 
and  mortgage  of  Adam  Empie,  in  the  spring  of  1839,  which 
he  declined  to  buy,  but  remarked  if  he  had  a  note  he  might 
buy  it  Some  time  after  this  conversation,  and  about  the  last 
of  March,  1839,  Lowell  again  called  and  offered  to  sell  a  note 
he  had  against  Adam  Empie  and  his  son  Levi  Empie  for  the 
amount  of  $500.  Plaintiff  told  him  he  was  not  in  a  condition 
then  to  buy,  but  did  not  know  but  he  might  raise  it.  Lowell 
urged  plaintiff  to  buy  the  note,  as  he  wanted  the  money  very 
much  to  pay  on  his  land ;  nothing  was  said  about  a  discount 
at  that  time  by  either ;  it  was  agreed  to  settle  the  matter  on 
the  5th  April  following ;  they  met  on  that  day,  and  had  for 
the  first  time  conversation  about  the  terms  of  the  purchase, 
and  they  agreed  on  a  discount  at  that  time  of  $28,  and  plaintiff 
paid  said  Lowell  $477  for  the  note ;  the  note  was  executed  by 
Adam  Empie  and  Levi  E-npie  makers,  and  drawn  payable  to 
said  Lowell  or  bearer,  and  not  to  plaintiff  or  bearer.  Plaintiff 
denies  saying  to  Lowell  that  if  he  would  procure  the  note  of 


NEW-YORK  PRACTICE  REPORTS.  47 

Handy  agt.  Empie. 

said  Adam  Empie  for  $500,  and  would  give  him  a  discount 
of  $25,  that  plaintiff  would  let  him  have  the  money.  Plain- 
tiff states  that  he  did  not  write  said  note  for  Adam  Empie  to 
sign,  nor  direct  or  advise  said  Lowell  to  procure  said  note,  but 
said  note  was  taken  by  said  Lowell  on  his  own  account,  as 
plaintiff  was  informed  by  said  Lowell  and  believes,  toward 
the  payment  of  lands  sold  by  said  Lowell  to  said  Adam  Ernpie. 
Plaintiff  has  the  affidavits  of  four  different  individuals  stating 
that  Lowell's  character  for  truth  and  veracity  is  bad.  The 
notes  were  exchanged  with  plaintiff  and  judgment  taken 
against  John  A.  Empie,  as  before  stated. 

S.  P.  NASH,  defendants  counsel. 
P.  RANDALL,  defendants  attorney. 

C.  STEVENS,  plaintijfs  counsel. 

D.  LAWYER,  plaintiff's  attorney. 

*PER  CURIAM. — The  allegation  of  usury  all  rests  [*48] 
on  the  affidavit  of  Demmon  Lowell.  He  is  impeached. 
But  if  we  give  full  credit  to  his  testimony,  it  does  not  show 
any  usury  in  the  $500  note,  which  went  into  the  judgment. 
Adam  Empie  was  indebted  to  Lowell  in  nearly  $1 ,400,  secured 
by  bond  and  mortgage.  Lowell  proposed  to  sell  the  mortgage 
to  the  plaintiff,  but  he  declined  purchasing  it.  Lowell  then 
got  a  note  from  Empie  with  his  sons  as  sureties  for  $500,  and 
sold  it  to  the  plaintiff  for  $472.  There  is  nothing  to  show 
that  this  was  not  a  valid  note  in  the  hands  of  Lowell.  It  was 
given  for  so  much  of  the  debt  due  to  him  from  Empie,  and 
when  Empie  pays  the  note,  he  will  have  paid  the  whole  $500 
towards  the  mortgage  debt  to  Lowell. 

Decision. — Motion  denied  with  costs. 


48  NEW-YORK  PRACTICE  REPORTS. 

Rust  agt.  Rowo. 


SAMUEL  RUST  agt.  WILLIAM  ROWE. 

Where  plaintiff  served  a  sufficient  bill  of  particulars,  after  service  of  notice  of 
motion  for  judgment  of  non  pros.,  the  motion  was  denied,  on  plaintiff's  paying 
$10  cost*. 

December  Term,  1844,  BRONSON,   J.,  presiding. 

MOTION  by  defendant  for  judgment  of  non  pros,  or  discon- 
tinuance against  the  plaintiff  for  his  neglect  to  comply  with 
the  peremptory  order  for  further  particulars. 

It  appears  on  the  part  of  the  defendant  that  this  is  an  action 
of  assumpsit.  Plaintiff  furnished  bill  of  particulars  about  9th 
May,  1844,  for  $861  due  plaintiff  as  per  account  stated  in  gross, 
about  the  month  of  August,  1839,  and  interest  thereon.  A 
further  bill  of  particulars  was  served  by  plaintiff  on  the  9th 
September  last,  under  an  order  of  a  judge,  which  was  not 
satisfactory  to  defendant  as  to  items,  and  another  order  on  the 
21st  of  September  last  was  procured,  requiring  plaintiff  par- 
ticularly to  furnish  bill  with  items,  considerations,  names, 
dates,  circumstances,  &c.,  or  show  cause  on  25th  September 
last ;  on  the  25th,  plaintiff  not  having  furnished  another  bill 
nor  shown  sufficient  cause,  an  order  was  made  requiring  plain- 
tiff's proceedings  to  be  stayed  until  such  bill  should  be  fur- 
nished. On  the  1st  of  October  last  no  further  bill  having  been 
served,  this  motion  was  noticed  and  served  on  plaintiff's  attor- 
ney. It  appears  on  the  part  of  the  plaintiff  immediately  after 
the  order  of  the  25th  September,  plaintiff  set  about  carefully 
examining  his  account  in  order  to  furnish  a  different  bill  of 
particulars ;  and  while  he  was  so  engaged  the  papers  for  this 
motion  were  served.  On  the  14th  November  last,  plaintiff's 
attorney  served  on  defej&dant's  attorney  another  bill  of  par- 
ticulars containing  a  literal  copy  of  the  original  statement  of 
an  account  between  plaintiff  and  defendant  with  explanations 
for  the  balance  appearing  to  be  due  plaintiff  from  defendant, 
and  for  which  this  action  is  brought,  which  account  was 
[*49]  stated  and  balance  struck  in  August,  1839,  *plaintiff's 


NEW-YORK  PRACTICE  REPORTS.  49 

Van  Schoyk  agt.  Jacoby. 

attorney  offered  to  pay  defendant's  attorney  costs  of  this 
motion  to  be  taxed  on  the  14th  November  last,  when  the 
last  bill  of  particulars  was  served,  which  defendant's  attorney 
declined  to  accept,  and  gave  plaintiff's  attorney  notice  that  he 
should  not  receive  any  other  bill  of  particulars  than  such  as 
conformed  to  the  peremptory  order. 

K.  W.  PECKHAM,  defendant's  counsel. 
H.  S.  DODGE,  defendants  attorney. 
A.  TABER,  plaintiff's  counsel. 
J.  M.  VAN  COTT,  plaintiff's  attorney. 

PER  CURIAM. — Since  notice  was  given  of  the  motion  the 
plaintiff  has  served  a  sufficient  bill  of  particulars.  He  has  now 
confined  his  claim  to  the  balance  found  in  his  favor  on  an  ac- 
count stated  between  the  parties  in  1839,  which  account  con- 
sisted of  five  items  for  cash  lent  and  advanced  to  the  defend- 
ant ;  interest  is  also  claimed,  dates  and  sums  are  given  with 
sufficient  particularity.  The  motion  is  therefore  denied  on  the 
plaintiff's  paying  $10  costs  of  the  same.  Rule  accordingly. 


STEPHEN  VAN  SCHOYK,  Plaintiff  in  Error,  agt.  SAMUEL 
JACOBY,  Defendant  in  Error. 

A  party  is  not  entitled  to  a  rule  to  assign  errors,  until  the  writ  of  error  has  been 
returned  and  filed.  Until  this  is  done,  the  court  of  review  does  not  become 
possessed  of  the  cause. 

December  Term,  1844,  BRONSON,  «/.,  presiding. 

MOTION  by  plaintiff  in  error  to  set  aside  judgment  of  non 
pros,  and  subsequent  proceedings  on  the  part  of  defendant  in 
error. 

This  action  was  commenced  in  a  justice's  court,  and  judg- 
ment rendered  for  defendant  in  error ;  an  appeal  was  brought 


49  XKW-YORK  PRACTICE  REPORTS. 

Van  Schoyk  agt.  Jacoby. 

to  the  court  of  common  pleas  of  Delaware  county,  and  judg- 
ment rendered  for  defendant  in  error,  in  January,  1843 ;  a 
writ  of  error  was  brought  by  plaintiff  in  error  on  the  last  judg- 
ment to  this  court,  28th  February,  1843.  While  proceedings 
were  being  had  to  bring  the  judgment  in  review  before  this 
court  and  on  the  2 1st  March  last,  the  parties  settled  all  claims, 
dues  and  demands  between  them,  including  said  judgment, 
and  passed  receipts ; — Also  agreed  that  the  writ  of  error  in 
this  cause  should  be  no  further  prosecuted ;  the  writ  of  error 
and  return  was  not  filed  with  the  clerk  of  this  court  on  the 
date  of  this  motion ;  on  the  9th  September  last  defendant  in 
error  entered  judgment  against  plaintiff  in  error,  in  this  court. 
On  the  part  of  defendant  in  error,  it  appears  that  this  judg- 
ment was  assigned  to  defendant's  attorney  to  pay  for  services, 
as  attorney  and  counsel  in  this  cause.  Defendant's  attorney 
gave  notice  to  plaintiff-m  error  on  20th  November,  1843,  that 
said  judgment  and  costs  belonged  to  him,  and  that  plaintiff  in 
error  must  not  settle  with  defendant  or  any  other  person ;  that 
defendant's  attorney  should  hold  him  liable  for  the  whole 
amount  On  the  28th  September,  1843,  defendant's  attorney 

entered  a  rule  requiring  plaintiff's  attorney  to  tran- 
[*50]  scribe  the  record  and  proceedings  in  eight  days  *and 

gave  notice.  It  also  appears  that  on  the  last  December, 
1843,  the  clerk  of  the  county  made  return  to  said  writ  of  error 
and  let  one  of  plaintiff's  attorneys  have  it  to  transcribe,  and 
then  to  file  with  the  clerk  of  this  court.  On  the  14th  March 
last,  defendant's  attorney  entered  the  usual  rule  for  plaintiff  to 
assign  errors,  and  served  notice  on  plaintiff's  attorneys;  on 
the  13th  of  May  last,  defendant's  attorney  entered  plaintiff's 
default  for  not  assigning  errors,  and  on  the  9th  September  last, 
perfected  his  judgment. 

A,  TABER,  plaintiff's  counsel. 

LUSK  &  PALMER,  plaintiff's  attorneys. 

A.  K.  MAYNARD,  defendants  counsel  and  attorney. 

PER  CURIAM.— The  defendant  is  not  entitled  to  a  rule  to 


NEW-YORK  PRACTICE  REPORTS.  50 

Royce  agt.  Mott. 

assign  errors  until  the  writ  of  error  has  been  returned  and 
filed— until  that  is  done,  the  court  of  review  does  not  become 
possessed  of  the  cause.  In  this  case  the  writ  of  error  was 
never  returned  ;  and  yet  the  defendant  has  ruled  the  plaintiff 
to  assign  errors,  entered  his  default  and  perfected  a  judgment 
of  non  pros.  This  was  clearly  irregular,  and  the  judgment 
must  be  set  aside.  The  defendant  had  reason  to  believe  the 
writ  had  been  returned,  but  that  only  goes  to  the  question  of 
giving  costs  on  this  motion.  So  too  the  alleged  delay  of  the 
plaintiff  in  moving  may  go  to  the  question  of  costs,  but  the 
case  is  not  put  that  the  motion  can  be  wholly  denied  on  the 
ground  of  delay.  There  is  a  further  objection  to  the  judg- 
ment ;  it  was  entered  after  the  matter  had  been  settled  by  the 
parties ;  and  here  a  question  is  made  about  the  attorney's  lien 
for  costs,  or  his  claim  as  assignee  of  the  original  judgment. 
He  says,  the  judgment  was  assigned  to  him,  but  does  not  say 
when  ;  it  is  a  little  uncertain  on  the  papers  whether  he  means 
to  assert  anything  more  than  a  lien.  Nothing  is  decided  in 
relation  to  this  branch  of  the  case,  should  it  come  up  again  the 
facts  will  probably  be  more  clearly  set  forth.  Under  the 
special  circumstances  of  the  case  no  costs  are  ordered. 

Decision. — Ordered  that  the  default  of  the  plaintiff  in  error 
for  not  assigning  errors,  and  all  subsequent  proceedings  on  the 
part  of  the  defendant  in  error,  including  the  judgment  of  non 
pros.,  be  set  aside  for  irregularity. 


AMOS  ROYCE  agt.  WILLIAM  MOTT. 

Where  plaintiff's  attorney  received  defendant's  special  pleas,  which  were  not  veri- 
fied, on  the  day  that  he  entered  default,  and  returned  them  because  not  served 
in  time,  held  irregular:  they  were  not  returned,  because  they  were  defective. 

December  Term,  1844,  BRONSON,  J.,  presiding. 
•MOTION  by  defendant  to  set  aside  default  and  subsequent 
proceedings  for  irregularity. 


50  NEW-YORK  PRACTICE  REPORTS. 

Royce  agt.  Mott 

Declaration  in  covenant,  served  on  defendant  28th  Septem- 
ber, 1844.  On  the  18th  October,  defendant's  attorney  mailed 
pleas  and  notice  of  retainer  to  plaintiff's  attorney  and  paid 

postage.  On  the  19th  October  they  were  received  by 
[*51]  plaintiff's  attorney.  On  the  21st  October  *plaintiff 's 

attorney  returned  said  pleas  to  defendant's  attorney  by 
mail :  on  said  pleas  were  indorsed,  "  Received  per  post,  Oc- 
tober, 19,  '44."  In  the  letter,  plaintiff's  attorney  wrote  as  fol- 
lows :  "  Your  plea  (inclosed)  came  after  default  entered,  and 
hence  same  is  returned  you."  It  appears  on  the  part  of  the 
plaintiff  that  default  was  entered  on  the  19th  October,  1844 ; 
that  plaintiff's  attorney  received  on  the  19th  October  past  12 
o'clock  at  noon,  by  mail  from  defendant's  attorney,  plea  of  non 
estfactum,  and  special  pleas  and  notice  of  retainer  in  the  cause ; 
that  none  of  the  pleas  were  verified  by  affidavit.  On  the  21st 
October,  the  pleas  were  returned  as  before  stated.  On  the 
25th  October,  plaintiff  executed  writ  of  inquiry  ;  and  on  the 
30th  October,  perfected  judgment ;  on  request  of  defendant's 
attorney,  refused  to  waive  default. 

A.  TABER,  defendants  counsel 
C.  G.  DAY,  defendant's  attorney. 
R.  J.  HlLTOX,  plaintiff's  counsel. 
E.  QuiN,  plaintiff's  attorney. 

PER  C  URIAH. — The  pleas  were  not  returned  because  they 
were  not  verified,  but  because  they  were  not  served  in  time. 
That  was  a  mistake,  and  the  plaintiff  is  irregular. 

Decision. — Ordered  that  the  default  and  subsequent  proceed- 
ings on  the  part  of  plaintiff  be  set  aside  for  irregularity,  with 
$10  costs,  to  be  paid  by  the  plaintiff;  and  that  the  defendant 
have  twenty  days  to  plead. 


NEW-YORK  PRACTICE  REPORTS.  51 

Osborn  agt.  Van  Cort. 

••it 

WILLIAM  BAXTER  agt.  WILLIAM  SEAMAN. 

Affidavits  must  be  entitled  in  the  suit  in  which  relief  is  sought. 

December  Term,  1844,  BRONSON,  J.,  presiding. 

MOTION  by  defendant  for  retaxation  of  costs. 

Seaman,  the  defendant  in  the  above  suit,  commenced  an  ac- 
tion of  ejectment  in  this  court  against  William  Baxter,  the 
plaintiff  in  this  cause.  Judgment  was  obtained  in  the  eject- 
ment suit  in  favor  of  the  defendant  Baxter,  against  said  Sea- 
man, Baxter  then  brought  the  above  suit  on  the  judgment ; 
and  Seaman  on  affidavits  entitled  in  the  suit  on  the  judgment, 
moves  to  retax  the  costs  included  in  the  judgment 

E.  SANDFORD,  defendant's  counsel. 
WESTERN  &  EDWARDS,  defendants  attorneys. 
J.  E.  BURRILL,  JR.,  plaintiff's  counsel. 
H.  Or.  ONDERDONK,  plaintiffs  attorney. 

PER  CURIAM. — The  affidavits  must  be  entitled  in  the  cause 
in  which  relief  is  asked. 

Decision. — Motion  denied  with  costs,  without  prejudice. 


WILLIAM  E.  OSBORN  agt.  CHARLES  J.  VAN  CORT. 

Plaintiffs  excuse,  and  terms  upon  which  he  was  permitted  to  stipulate  a  second 
time. 

December  Term,  1844,  BRONSON,  J.,  presiding. 
MOTION  by  defendant  for  judgment  as  in  case  of  nonsuit  af- 
ter stipulation. 


52  NEW-YORK  PRACTICE  REPORTS 

Wilmarth  agt.  Oatfield. 

The  plaintiff  is  allowed  to  stipulate  a  second  timo 
f*52]  in  this  cause,  *because  of  the  sickness  of  a  material 
witness  residing  in  Tompkins  county,  whose  attend- 
ance the  plaintiff  could  not  procure  at  the  September  circuit 
in  Kings  county,  where  the  venue  is  laid,  due  diligence  hav- 
ing been  used  by  plaintiff  to  procure  the  attendance  of  the 
witness  previous  to  the  circuit.  No  costs  allowed  on  the  mo- 
tion, for  the  reason  that  plaintiff  had  tendered  a  second  stipu- 
lation, and  there  was  doubt  whether  or  not  the  defendant  had 
accepted  it.  The  judge  thought  the  plaintiff  considered  it  ac- 
cepted. 

J.  T.  BRADY,  defendant's  counsel. 
A.  J.  SPOONER,  defendant's  attorney. 
CHARLES  TAYLOR,  plaintiff's  counsel 
J.  DIKEMAN,  JR.,  plaintiff's  attorney. 

Decision. — Motion  granted,  unless  plaintiff  stipulate  and  pay 
costs  of  preparing  for  circuit,  without  costs  of  this  motion  to 
either  party. 


WILLIAM  WILMARTH,  plaintiff  in  error  agt.  JOHN  H.  GAT- 
FIELD,  defendant  in  error. 

BickneoB  of  attorney,  sufficient  excuse  to  open  default  taken  at  general  term. 

December  Term,  1844,  BRONSON,  «/.,  presiding. 

MOTION  by  defendant  in  error  to  set  aside  default,  taken  in 
this  cause  on  the  21st  day  of  October  last,  (October  general 
term.) 

Defendant's  attorney  was  taken  sick  during  the  latter  part 
of  September  last,  and  remained  so  that  he  was  unable  to  at- 
tend to  business,  until  about  the  21st  of  October ;  for  that  rea- 
son, was  unable  to  prepare  the  papers  in  this  cause,  and  have 


NEW-YORK  PRACTICE  REPORTS.  52 

Young  agt.  Carpenter. 

them  in  the  hands  of  counsel  at  the  commencement  of  October 
term.  He  did  not  employ  any  other  person  to  do  it,  for  the 
reason  he  supposed  it  not  possible  for  so  late  an  issue  as  this 
(31st  July  last)  to  be  reached  on  the  calendar  during  the  first 
week  of  the  term. 

CHARLES  TAYLOR,  defendant's  counsel. 
F.  SAYRE,  defendant's  attorney. 
P.  CAGGER,  plaintiff  's  counsel. 
A.  L.  BROWN,  plaintiff's  attorney. 

PER  CURIAM. — The  sickness  of  defendant's  attorney  is  suf- 
ficient excuse. 

Decision. — Motion  granted  on  payment  of  costs  of  noticing 
the  cause,  the  costs  of  October  term,  subsequent  proceedings 
and  costs  of  opposing  motion. 


*NATHAN  YOUNG  agt.  JACOB  CARPENTER.       [*53] 

Terms  imposed  on  defendant  in  setting  aside  plaintiff's  judgment  nisi,  Ac.,  on 
filing  report  of  referees,  and  allowing  defendant  to  make  a  case. 

December  Term,  1844,  BRONSON,  J.,  presiding. 

MOTION  by  defendant  for  leave  to  make  a  case  in  this  cause, 
to  set  aside  the  report  of  the  referee  therein,  on  the  ground  of 
surprise  in  filing  report,  &c. 

The  referee  made  and  delivered  his  report  to  plaintiff's  at- 
torney on  the  llth  November,  1844,  and  informed  one  of  de- 
fendant's attorneys  of  it  same  day.  Plaintiff's  attorney,  on 
the  same  day,  filed  the  report  and  entered  rule  for  judgment, 
final  nisi,  &c.,  no  notice  of  filing  said  report  was  given  to  de- 
fendant's attorney.  On  the  16th  November,  plaintiff's  attor- 
ney served  bill  of  costs  and  notice  of  retaxation  on  defendant's 
attorne}7. 


53  NEW-YORK  PRACTICE  REPORTS. 

Bromaghiro  agt.  Goree 

E.  J.  DILLON,  defendants  counsel. 
WARING  &  RALPH,  defendant's  attorney. 
CHARLES  TAYLOR,  plaintiff's  counsel. 
J.  DIKEMAN,  JR.,  plaintiff's  attorney. 

Decision. — Ordered  that  the  judgment  be  set  aside  on  pay- 
ment of  $10  costs  of  opposing  motion,  and  the  costs  of  pro- 
ceedings subsequent  to  filing  the  report  of  referee,  with  leave 
to  plaintiff  to  serve  opposing  affidavits,  within  ten  days. 


H4NNAH  BROMAGHIM  agt  JOHN  GORSE. 

Objections  to  defendant's  bill  of  costs ;  merely  on  motion  for  judgment  as  in 
case  of  nonwiit,  is  defending  on  the  wrong  ground :  should  be  appeal  from 
taxation. 

December  Term,  1844,  BRONSON,  J.t  presiding. 

MOTION  by  defendant  for  judgment  as  in  case  of  nonsuit. 

Issue  was  joined  on  5th  August  last,  noticed  for  trial  by 
plaintiff  August  15th,  for  circuit  held  on  21st  October.  On 
the  10th  October  a  countermand  of  the  notice  of  trial  was 
served,  defendant  made  out  his  costs  for  preparing  for  trial 
previous  to  countermand,  and  had  them  taxed  on  notice ; 
costs  were  served  and  demanded  of  plaintiff  on  28th  October, 
and  have  not  yet  been  paid.  The  plaintiff's  papers  in  oppo- 
sition to  this  motion  are  entirely  explanations  of  and  objec- 
tions to  the  defendant's  bill  of  costs,  as  taxed  and  served 
previous  to  countermand,  and  an  excuse  for  not  opposing 
taxation* 

R  J.  HILTON,  defendant's  counsel. 

A.  BECKER,  defendant's  attorney. 

M.  SANFORD,  plaintiff's  counsel  and  attorney. 

PEB  CURIAM.— Plaintiff  defends  on  the  wrong  ground  ;  he 
«hould  have  appealed  from  taxation. 


NEW-YORK  PRACTICE  REPORTS.  53 

People  agt.  Mayor,  &c.,  of  Brooklyn. 

Decision. — Motion  granted,  unless  plaintiff  pay  defendant 
costs  of  preparing  for  circuit  up  to  the  time  of  countermand, 
to  be  retaxed  on  due  notice,  and  also  ten  dollars  costs  of  this 
motion. 


THE  PEOPLE  ex  rel  NORRIS  L.  MARTIN  agt.  THE  MAYOR  AND 
COMMON  COUNCIL  OF  BROOKLYN. 

Excuse  and  terms  for  opening  default  taken  at  general  term  in  Rochester. 

December  Term,  1844,  BRONSON,  J".,  presiding. 

MOTION  by  defendants  to  set  aside  default  taken  on  the  first 
day  of  the  last  October  (general)  term. 

This  case  is  similar  to  previous  motions  at  this  term 
*for  the  same  purpose.     The  counsel  for  the  corpora-     [*54] 
tion  supposing  the  case  would  not  be  reached  until  late 
in  the  October  term,  omitted  to  attend,  and  default  was  taken 
on  the  first  day  of  term.     The  whole  calendar  having  been 
called  through  on  the  first  day,  and  thus  the  counsel  was 
surprised. 

N.  F.  WARING,  defendants'  counsel  and  attorney. 
J.  T.  BRADY,  plaintiffs1  counsel. 
H.  B.  DURYEA,  plaintiff*1  attorney. 

The  judge  repeated  his  former  remarks  to  counsel  in  rela- 
tion to  the  term  held  at  Rochester,  that  the  calendar  had  been 
called  through  on  the  first  or  second  day  of  the  term  ever 
since  the  court  had  been  held  at  Rochester. 

Decision. — Default  set  aside,  on  payment  of  the  costs  of  the 
default  and  subsequent  proceedings,  and  seven  dollars  costs 
of  opposing  motion. 


54  NEW-YORK  PRACTICE  REPORTS. 

Pike  agt.  Power. 


JOHN  MILLER  agt.  ISRAEL  PALMER. 

December  Term,  1844,  BRONSON,  J".,  presiding. 

MOTION  by  defendant  to  change  the  venue. 

This  motion  was  denied  on  the  ground  that  plaintiff  had 
lost  a  circuit  by  defendant's  order  to  stay  proceedings.  De- 
fendant prepared  his  papers  and  gave  notice  for  the  motion 
at  the  October  special  term :  the  papers  proved  to  be  defect- 
ive ;  the  motion  was  not  then  made ;  papers  were  withdrawn 
and  corrected,  and  the  motion  made  at  the  present  term. 

PER  CURIAM.— Too  late.    Plaintiff  has  lost  a  circuit 

L.  H.  PALMER,  defendant's  counsel. 

T>.  MANN,  defendant's  attorney. 

C.  H.  BRAMHALL,  plaintiff's  counsel  and  attorney. 

• 
Decision. — Motion  denied  with  costs. 


SOLOMON  M.  PIKE  agt.  JOHN  H.  POWER. 

December  Term,  1844,  BRONSON,  J.,  presiding. 

MOTION  by  plaintiff  to  set  aside  default  for  not  declaring, 
&c.,  for  irregularity. 

The  plaintiff  does  not  state  in  his  affidavits  that  a  default 
has  been  entered. 

F.  H.  HASTINGS,  plaintiff's  counsel. 
J.  H.  STEWART,  plaintiff's  attorney. 
A.  TABER,  defendant's  counsel. 
J.  H.  POWER,  defendant's  attorney. 


NEW-YORK  PRACTICE  REPORTS.  54 

Van  Nameo  agt.  Jones. 

Denied  on  the  ground  that  plaintiff  does  not  show  that  any 
default  has  been  entered  in  the  cause. 

Decision. — Motion  denied  with  costs,  without  prejudice. 


*SAMUEL  MILLER  agt.  BENJAMIN  AMES.       [*55] 

December  Term,  1844,  BRONSON,  J.,  presiding. 
MOTION  by  defendant  to  change  the  venue. 

C.  B.  DRAKE,  defendants  attorney. 
CLARK  &  THOMPSON,  plaintiff's  attorneys. 

Denied  on  the  ground  that  defendant  does  not  disclose  in 
his  affidavit,  that  he  stated  to  his  counsel  what  he  expected  to 
prove  by  his  witnesses. 

Decision. — Motion  denied  with  costs. 


JOSHUA  VAN  NAMEE  et  al  agt.  JOHN  JONES. 

A  default  for  not  pleading  opened  on  terms,  where  plaintiff  was  regular,  for  the 
reason  that  there  being  an  open  running  account  between  the  parties,  it  would 
be  better  to  let  a  jury  pass  upon  it. 

December  Term,  1844,  BRONSON,  J.,  presiding. 

MOTION  by  defendant  to  set  aside  default  for  not  pleading, 
and  all  subsequent  proceedings  on  terms. 

It  appears  from  defendant's  papers  that  his  excuse  for  not 
pleading  to  the  declaration,  after  service  upon  him,  was,  that 
he  was  unacquainted  with  such  business,  and  supposed  a  suit 
must  be  commenced  by  service  of  process  by  a  sheriff.  He 


55  NEW-YORK  PRACTICE  REPORTS. 

Van  Patten  agt.  Austin. 

swears  that  the  suit  is  commenced  on  an  open  account  which 
has  been  running  some  time  between  him  and  plaintiffs.  Since 
suit  was  commenced,  has  had  interviews  with  plaintiffs  in  re- 
lation to  settlement ;  also  swears  to  merits.  Plaintiffs  state  the 
suit  is  brought  to  recover  the  balance  due  on  a  bill  of  lumber, 
the  amount  of  which  defendant  has  repeatedly  promised  to 
pay.  Since  suit  commenced  he  had  requested  some  of  the 
amount  deducted  for  certain  items.  The  clerk  of  plaintiffs' 
attorney  explained  to  defendant  the  object  of  the  declaration 
at  the  time  of  service ;  told  him  to  give  it  to  a  lawyer,  or  he 
would  have  judgment  against  him  in  twenty  days.  Plaintiffs 
are  regular. 

HORACE  DRESSER,  defendants  counsel. 

B.  B.  PHELPS,  defendants  attorney. 

N.  HILL,  JR.,  plaintiffs'  counsel. 

L.  C.  CLARK,  plaintiffs'  attorney.  '. 

Default  opened  on  the  ground  that  there  being  an  open 
running  account  and  disputed  items,  it  would  be  well  to  let  a 
jury  pass  upon  it  after  hearing  the  defence. 

t 

Decision. — Motion  granted,  on  payment  of  costs  of  default 
and  subsequent  proceedings,  and  seven  dollars  costs  of  oppos- 
ing motion,  judgment  to  stand  as  security. 


JOHN  J.  VAN  PATTEN  agt.  JOHN  AUSTIN. 

December  Term,  1844,  BRONSON,  J.,  presiding. 
MOTION  by  defendant  to  change  venue. 
Declaration  served  twentieth  of  August  last,  and  issue  joined 
fourth  of  September. 


NEW-YORK  PRACTICE  REPORTS.  56 

Gilbert  agt.  Chapman. 

*S.  F.  SHEPARD,  defendants  counsel.  [*56] 

A.  GALLUP,  defendants  attorney. 
N.  HILL,  JR.,  plaintiff's  counsel. 
S.  W.  JONES,  plaintiffs  attorney. 

Motion  too  late,  might  have  moved  at  September  term,  and 
saved  a  circuit. 


Decision. — Motion  denied  with  costs. 


LEMUEL  GILBERT  agt.  WILLIAM  CHAPMAN. 

December  Term,  1844,  BRONSON,  «/".,  presiding. 

MOTION  by  defendant  to  change  venue. 

The  plaintiff  swears  to  the  greatest  number  of  witnesses; 
but  his  affidavit  is  defective  in  not  stating  that  his  witnesses  are 
material  on  the  trial  of  the  cause :  that  part  of  the  affidavit  is  as 
follows,  "  that  he  has  fully  and  fairly  stated  the  case  to  his 
said  counsel  in  this  cause,  and  disclosed  to  him  the  facts  w^hich 
he  expects  to  prove  by  each  and  every  of  his  said  witnesses 
above  named,  and  that  he  cannot  safely  proceed  to  the  trial  of 
this  cause,  as  he  is  also  advised  by  his  said  counsel,"  &c. 

J.  DAVIS,  defendant's  counsel. 
DAVIS  &  BANCROFT,  defendants  attorneys. 
A.  TABER,  plaintiff's  counsel. 
EAYMOND  &  CLARK,  plaintiff's  attorneys. 

Decision.—- Motion  granted. 
VOL.  L  6 


56  NEW-YORK  PRACTICE  REPORTS. 

Wolfe  agt.  Wynkoop. 


HENRY  BOUGHTON  agt.  GEORGE  LOCKWQOD. 

December  Term,  1844,  BRONSON,  Ji,  presiding. 

MOTION  by  defendant  for  judgment  as  in  case  of  nonsuit. 

The  defendant  has  his  papers  entitled  in  the  cause  with  the 
plaintiff's  name  Henry  Boughton.  The  plaintiff  has  his  en- 
titled Harvey  Boughton.  Plaintiff's  attorney  swears  that  the 
only  cause  pending  against  George  Lockwood,  in  which  he  is 
attorney,  is  the  one  in  favor  of  Harvey  Boughton. 

S.  P.  NASH,  defendant's  counsel. 
PADDOCK  &  COOKE,  defendant's  attorneys. 
R.  J.  HILTON,  plaintiff's  counsel. 
A.  BECKER,  plaintiff's  attorney. 

PER  CURIAM. — Defendant's  papers  appear  to  be  entitled 
wrong. 

Decision. — Motion  denied  with  costs,  without  prejudice. 


JOEL  WOLFE  agt.  EVERT  WYNKOOP,  Impleaded,  &c. 

Where  defendant  filed  his  petition  as  a  bankrupt,  before  suit  commenced,  bat 
discharged  after  judgment,  the  judgment  waa  opened  on  terms,  with  leave  to 
defendant  to  plead  hia  discharge. 

December  Term,  1844,  BRONSON,  J.,  presiding. 
MOTION  by  defendant  Wynkoop  for  a  perpetual  stay  of 
proceedings  on  the  fieri  facias  issued  in  this  cause,  on  the 
ground  that  said  defendant  has  been  discharged  as  a  bank- 
rupt 

[*57]     *The  action  is  brought  on  a  promissory  note  signed 
by  defendant  Wynkoop.     Commenced  on  the  28th 


NEW-YORK  PRACTICE  REPORTS.  57 

Travis  agt.  Hadden. 

January,  1843.  Defendant  did  not  appear  and  plead. 
Judgment  perfected  February  23,  184:3.  On  the  14th  Janu- 
ary, 1843,  defendant  presented  his  petition  as  a  bankrupt, 
including  the  note  in  this  suit,  and  was  discharged  June  5th, 
1843.  No  fraud  alleged  in  the  discharge. 

S.  F.  SHEPARD,  defendants1  counsel. 
FORBES  &  SHELDON,  defendants'1  attorneys. 
J.  EDWARD,  plaintiff's  counsel. 
S.  H.  TERRY,  plaintiff's  attorney. 

PER  CURIAM. — The  proper  course  seems  to  be  in  such  a 
case,  to  open  the  judgment,  and  grant  the  defendant  leave  to 
plead  his  discharge  on  payment  of  costs. 

Decision. — Ordered  that  said  defendant  be  allowed  to  plead 
his  discharge  in  bankruptcy,  on  payment  of  costs  of  judg- 
ment and  seven  dollars  costs  of  opposing  this  motion.  Plain- 
tiff to  have  leave,  in  twenty  days  thereafter,  to  discontinue 
without  costs. 


GEORGE  "W.  TRAVIS  agt.  JOHN  B.  HADDEN. 

Terms  upon  which  defendant  was  allowed  to  open  default  and  amend  a  special 
plea,  where  his  excuse  was  a  misapprehension  of  the  practice. 

December  Term,  1844,  BRONSON,  J.,  presiding. 

MOTION  by  defendant  for  leave  to  amend  his  second  and 
amended  plea  of  bankrupt's  discharge,  by  setting  out  facts  to 
show  that  the  court  had  jurisdiction. 

Declaration  served  9th  April,  1844.  On  the  30th  April, 
pleas  were  served.  '  On  the  3d  July,  a  demurrer  to  defendant's 
second  plea  was  filed,  and  on  the  8th  July  served.  On  the 
2d  August,  an  amended  plea  was  served,  and  on  the  12th 


57  NEW-YORK  PRACTICE  REPORTS. 

Starbuck  agt  Hall. 

August  a  demurrer  to  that  was  filed  and  served,  and  rule  re- 
quiring defendant  to  join  in  demurrer.  On  the  8th  October 
default  was  entered  for  not  joining  in  demurrer,  and  cause 
noticed  for  trial  on  the  issue  of  fact  for  November  circuit. 
Defendant  states  until  after  the  September  special  term,  he 
was  ignorant  of  the  decision  and  rule  of  practice  in  this  court 
in  5  Hill,  327 ;  as  soon  as  he  had  learned  such  practice,  he 
prepared  papers  and  served  them  for  a  motion  at  October 
special  term,  but  they  were  served  too  late  for  said  term,  and 
he  makes  the  motion  at  the  next  and  present  term. 

S.  F.  SHEPARD,  defendant's  counsel. 
BASHFORD  &  KETCHUM,  defendants  attorneys. 
A.  TABER,  plaintiffs  counsel. 
WM.  NELSON,  plaintiffs  attorney. 

Plaintiff's  counsel  insists  the  motion  is  too  late,  it  should 
be  denied  on  the  ground  of  delay. 

Defendant's  counsel  insists,  that  under  the  state  of  facts  as 
shown  by  defendant,  his  being  unaware  of  the  decision  of  this 
court  and  using  due  diligence  after  he  ascertained  such  deci- 
sion, should  be  a  sufficient  excuse. 

[*58]     * Decision. — Motion  granted  on  payment  of  costs  of 
default,  circuit  and  demurrer  and  costs  of  opposing 
motion. 


NATHANIEL  STARBUCK  et  al.  agt.  JONATHAN  HALL  et  al. 

Defendant  was  allowed  a  commission,  without  a  stay,  where  the  cause  had  once 
been  put  over  a  circuit  by  defendant,  on  account  of  the  absence  of  the  same 
witness. 

December  Term,  1844,  BRONSON,  J.,  presiding. 

MOTION  by  defendants  for  a  commission. 

Issue  joined  9th  February,  1844.    Cause  noticed  for  April 


NEW-YORK  PRACTICE  REPORTS.  58 

Luyster  agt.  Hoag. 

circuit,  and  put  over  by  defendants  on  account  of  the  absence 
of  the  same  witness,  for  which  a  commission  is  asked  for. 
Cause  noticed  for  November  circuit,  and  a  day  or  two  pre- 
vious to  the  circuit,  notice  of  this  motion  was  served.  De- 
fendants state  they  fully  expected  to  be  able  to  procure  the 
attendance  of  the  witness,  until  the  notice  of  this  motion  was 
served,  and  that  he  is  a  material  witness  for  defendants. 
Plaintiffs  allege  delay  to  be  the  object  of  the  motion. 

S.  P.  NASH,  defendants'  counsel. 
BOCKES  &  NASH,  defendants'  attorneys. 
B.  PEARSON,  plaintiffs'  counsel. 
J.  P.  ALBERTSON,  plaintiffs'  attorney. 

•.'••~  ;ui?>..ii-  &  <~,^T  >"  KWb&fea  ^hfcffh  sill  ij  y;.-: 

Decision. — Motion  granted,  without  stay,  on  payment  of 
costs  of  preparing  and  attending  the  last  Kensselaer  circuit, 
and  costs  of  opposing  motion. 


JOHN  P.  LUYSTER  et  al  agt.  PETER  HOAG. 
COSTS. 

December  Term,  1844,  BRONSON,  */".,  presiding. 

MOTION  by  plaintiff  for  retaxation  of  costs. 

Action  replevin ;  verdict  for  defendant.  On  taxation  plain- 
tiffs objected,  first  to  the  charge  of  fifty  cents  for  furnishing 
proof  of  service  of  the  defendant's  plea,  on  the  ground  that 
such  plea  was  the  general  issue  or  non  cepit,  and  no  proof  was 
necessary  ;  also  objected  to  the  charge  for  proof  of  the  service 
of  notice  of  trial,  on  the  ground  that  no  such  proof  was 
necessary.  Second,  objected  to  the  allowance  of  sixteen  copies 
of  the  subpoena  and  for  serving  the  same  on  sixteen  witnesses, 
on  the  ground  that  there  was  no  evidence  before  the  commis- 
sioner that  the  copies  had  been  made  or  served,  and  also  on 


58  NEW-YORK  PRACTICE  REPORTS. 

Luyster  agt.  Hoag. 

the  ground  of  the  insufficiency  of  the  affidavit  of  attendance 
of  witnesses.  Third,  objected  to  the  charge  of  $3  for  copy  of 
pleadings,  on  the  ground  that  a  copy  was  furnished  to  the 
court  by  the  plaintiff.  Fourth,  objected  to  the  allowance  of 
$60  for  travel  and  attendance  of  defendant's  witnesses,  on  the 
following  grounds :  First,  that  the  affidavits  of  travel  and 
attendance  did  not  state  the  place  of  residence  of  each  witness, 
and  the  distance  he  had  to  travel  to  reach  court ;  second,  that 
there  was  no  evidence  that  such  witnesses  were  ma- 
[*59]  terial  *to  the  trial  of  the  issue  joined  in,  or  were  sub- 
poenaed in  said  cause,  and  attended  in  good  faith ; 
third,  that  more  than  three  days  were  charged  for  some  of  the 
witnesses  upon  the  ground  that  the  cause  was,  on  the  first 
day  of  the  circuit,  set  down  for  Tuesday  of  the  second  week, 
and  was  actually  tried  on  Wednesday  of  the  second  week. 
Fifth,  objected  to  fifty  cents  for  sheriff  summoning  jury,  on 
the  ground  that  the  cause  was  put  upon  the  calendar  by  the 
plaintiff  and  tried  on  his  motion.  Sixth,  objected  to  the  al- 
lowance of  more  than  one  copy  of  the  bill  of  costs. 

P.  CAQGER,  defendants  counsel. 
S.  BARCULO,  defendants  attorney. 
S.  P.  NASH,  plaintiff's  counsel. 

N.  REEVE,  plaintiff's  attorney. 

i 

Decision. — Ordered  that  the  items  one  and  six,  mentioned 
in  moving  affidavit,  be  struck  out,  amounting  to  $1.50,  and 
ordered  relaxation  as  to  two  and  four,  because  the  affidavit 
must  show  the  witnesses  material  and  necessary ;  and  as  to  ob- 
jections three  and  five,  ordered  that  they  be  taxed  to  the 
defendant  on  proof  that  defendant  furnished  copy  pleadings 
and  put  cause  on  calendar. 


NEW-YORK  PRACTICE  REPORTS. 
Cooper  agt.  North. 


EBENEZER  COOPER  agt.  JOHN  NORTH  el  al. 

Interest  taxed  as  costs  on  a  verdict,  under  the  act  of  May  7,  1847,  applies  onlv 
to  verdicts  and  reports  rendered  and  made  after  its  passage. 


December  Term,  1844,  BRONSON,  J.,  presiding. 

MOTION  by  plaintiff  for  retaxation  of  costs  with  instructions. 

This  was  a  special  action  on  the  case,  for  diverting  water 
from  the  plaintiff's  mills.  A  verdict  was  rendered  for  the 
plaintiff  in  June,  1841 :  proceedings  on  the  verdict  being 
stayed,  on  the  making  of  a  case,  judgment  was  not  rendered 
thereon  until  January,  1844.  In  June,  1844,  the  plaintiff's 
costs  were  duly  taxed  and  the  record  signed,  filed  and  dock- 
eted. And  now  the  plaintiff  moves  for  a  retaxation  of  costr 
with  instructions  to  the  taxing  officer  to  tax  with  them  the 
interest  on  the  verdict  from  the  time  the  same  was  rendered. 

GK  STOW,  defendant's  counsel  and  attorney. 

A.  TABER,  plaintiff's  counsel. 

G.  M.  BECKWITH,  plaintiff's  attorney. 

**-'., 

PER  CURIAM. — The  act  of  May  7th,  1844  (Session  Laws, 
p.  508),  is  not  retrospective  in  its  operation.  It  applies  only 
to  verdicts  and  reports  rendered  and  made  after  its  passage. 

Decision. — Motion  denied  with  costs. 


60  NEW-YORK  PRACTICE  REPORTS. 

Cowenhoven  agt  Ondordonk. 


|"*60]    *In   the  matter  of  the  application  of  TEUNIS   T. 
COWENHOVEN  agt.  HORATIO  G.  ONDERDONK. 

Where  0.  purchased  of  U.  a  judgment  against  C.,  and  afterwards  0.  told  0.  ho 
purchased  it  for  him  (G),  held,  that  C.  could  not  compel  an  assignment 

December  Term,  1844,  BRONSON,  «/.,  presiding. 

MOTION  by  Cowenhoven  for  an  order  directing  Onderdonk 
to  transfer  to  said  Cowenhoven  a  certain  judgment. 

J.  J.  Ullman  recovered  a  judgment  against  Cowenhoven 
for  $62.51.  Onderdonk  recovered  a  judgment  against  said 
Cowenhoven  in  March  last.  Onderdonk  subsequently  became 
the  purchaser  of  the  Ullman  judgment.  Cowenhoven  states 
Onderdonk  had  told  him,  that  he  had  purchased  the  judg- 
ment of  him  (Cowenhoven).  It  did  not  appear  whether  this 
was  before  or  after  Ouderdonk  had  purchased  the  judgment. 
The  plaintiff  also  produced  the  affidavit  of  Ullman  that  On- 
derdonk had  represented  himself  as  the  agent  of  Cowenhoven 
and  an  affidavit  proving  a  tender  to  Onderdonk  of  the  amount 
he  had  purchased  it  for.  Cowenhoven  now  applies,  that 
Onderdonk  assign  the  judgment  to  him  or  satisfy  it,  on  the 
payment  of  the  purchase  money.  Onderdonk  produced  an 
affidavit  denying  that  he  purchased  it  as  the  agent  of  Cowen- 
hoven. 

J.  E.  BURHILL,  JR.,  defendant's  counsel 
H.  G.  ONDERDONK,  in  propria,  persona. 
A.  TABER,  plaintiffs  counsel. 
WESTERN  &  EDWARDS,  plaintiffs  attorneys. 

The  court  denied  the  motion,  on  the  ground,  among  others, 
that  although  Onderdonk  had  informed  Cowenhoven,  after  he 
had  bought  the  judgment,  that  he  had  purchased  it  for  him, 
still  he  could  not  compel  him  to  assign  ;  and  also  because  Ull- 
man, the  judgment  creditor,  was  the  party,  if  any,  to  complain. 

Decision. — Motion  denied,  with  costs 


NEW-YORK  PRACTICE  REPORTS.  60 

Dutchess  County  Bank  agt.  Ibbotson. 


THE  PRESIDENT,  &c.  OF  THE  DUTCHESS  COUNTY  BANK  agt. 
HENRY  IBBOTSON. 

Excuse  and  terms  upon  which  defendant  was  allowed  liberty  to  make  a  case  or 
bill  of  exceptions,  after  four  days  had  elapsed  after  inquest  at  the  circuit. 

December  Term,  1844,  BRONSON,  J.,  presiding. 

MOTION  by  defendant  for  liberty  to  make  and  serve  a  case 
or  bill  of  exceptions,  notwithstanding  more  than  four  days 
have  elapsed  since  the  inquest  was  taken. 

Inquest  taken  on  a  promissory  note  at  Dutchess  circuit 
held  in  October  last.  Defendant  appeared  and  cross  examined 
plaintiff's  witnesses,  and  took  exceptions  to  the  decisions  of 
the  circuit  judge  in  admitting  testimony,  on  the  ground  of  in- 
sufficiency of  the  evidence  to  sustain  plaintiff's  cause  of  ac- 
tion. Defendant  moved  before  inquest  was  taken,  to  put  the 
cause  over  the  circuit,  on  account  of  the  absence  of  witnesses, 
which  motion  was  denied.  Defendant  swears  to  merits,  and 
alleges  as  an  excuse  for  not  procuring  an  order  within  four 
days,  that  his  attorney  residing  in  New- York  did  not 
get  the  letter  written  by  defendant's  counsel  on  the  [*61] 
day  of  the  inquest,  in  time  to  procure  such  order. 

J.  E.  BURRILL,  Jr.,  defendants  counsel. 
P.  BURROWS,  defendant's  attorney. 
P.  CAGGER,  plaintiff"1  s  counsel. 
C.  W.  SWIFT,  plaintiff's  attorney. 

Decision. — Ordered  that  on  payment  of  plaintiff's  costs  of 
circuit  and  subsequent  proceedings,  and  of  opposing  motion, 
defendant  be  allowed  fifteen  days  from  date  of  rule  to  make 
and  serve  a  case  or  bill  of  exceptions.  Plaintiffs  to  be  at 
liberty  to  put  cause  on  calendar  for  January  term,  without 
serving  notice  of  argument. 


61  NEW-YORK  PRACTICE  REPORTS. 

Mather  agt  WardwelL 


In  the  matter  of  WILLIAM  WALSWORTH. 

December  Term,  1844,  BRONSON,  «/.,  presiding. 
MOTION  to  set  aside  the  attachment  against  the  estate  of 
William  Walsworth,  an  absconded  or  concealed  debtor. 

N.  EfiLL,  JR.,  counsel  for  motion. 
FITCH  &  SHELDON,  moving  attorneys. 
E.  W.  PECKHAM,  counsel  opposed. 
0.  A.  THORP,  attorney  opposed. 

Denied  with  costs,  without  prejudice,  on  the  ground  that 
the  judge's  report  on  the  proceedings  has  not  been  filed. 


HENRY  H.  MATHER  agt.  CHARLES  WARDWELL. 

December  Term,  1844,  BRONSON,  J.,  presiding. 

MOTION  by  defendant  for  judgment,  as  in  case  of  nonsuit. 

G.  B.  KELLOGG,  defendant's  counsel. 
HENRY  NICOLL,  defendant's  attorney. 
J.  ROMEYN,  plaintiff's  counsel. 
JNO.  B.  BRITTON,  plaintiff's  attorney. 

Denied,  with  costs,  without  prejudice,  on  the  ground  that 
defendant  does  not  state  in  his  papers  tJiat  the  cause  was  not 
tried.  He  states  that  the  cause  was  called  and  passed,  and  the 
younger  issues  were  tried,  and  that  this  cause  might  have  been 
tried  in  its  regular  order  on  the  calendar. 

'j .'  :>    '    • 


NEW-YORK  PRACTICE  REPORTS.  61 

Warren  agt.  Campbell. 


JAMES  WARREN,  JR.  et  al.  agt.  HENRY  CAMPBELL. 

Plaintiff  allowed  to  add  new  counts  to  his  declaration,  upon  terms,  after  issue 
joined,  and  defendant  had  examined  a  witness  on  commission. 

December  Term,  1844,  BRONSON,  J.,  presiding. 

MOTION  by  plaintiffs  for  leave  to  amend  their  declaration 
by  adding  such  new  counts  thereto,  upon  the  same  cause  of 
action  already  stated  in  said  declaration  as  may  be  necessary 
and  proper,  truly  to  set  forth  the  plaintiff's  cause  of  action, 
and  to  enable  them  to  try  the  merits. 

This  is  a  special  action  on  the  case  for  deceit  in  procuring 
goods  of  plaintiffs ;  issue  joined  18th  May  last.    Defendant 
has  examined  a  witness  by  commission.    Cause  noticed 
for  trial  at  September  Monroe  circuit,  for  fourth  *Tues-     [*62] 
day.    Plaintiffs  discovered  new  and  material  evidence 
on  the  28th  of  September,  which  they  allege  cannot  be  given 
on  the  trial  under  the  counts  as  they  now  stand. 

D.  CADY,  defendants  counsel. 

H.  GAY,  defendants  attorney. 

J.  EDWARDS,  plaintiffs1  counsel. 

MATTHEWS  &  HUSBANDS,  plaintiffs'  attorneys. 

Defendant  objects  on  the  grounds  that  it  is  too  late  after 
testimony  has  been  taken,  and  alleges  actions  of  this  kind 
should  be  put  upon  the  same  ground,  as  to  amendments,  as 
penal  actions,  where  it  is  not  done  except  under  very  special 
circumstances.  (Graham's  Practice  654,  and  cases  there  cited.) 

Plaintiffs'  papers  show  that  the  newly  discovered  evidence 
has  no  bearing  upon  defendant's  testimony  taken  by  commis- 
sion, and  the  application  was  not  induced  by  that. 

Decision. — Motion  granted  on  payment  of  costs  opposing 
motion  and  the  costs  of  a  new  commission,  if  one  shall  become 
necessary,  and  the  costs  of  the  plea. 


NEW-YORK  PRACTICE  REPORTS. 
Mason  agt.  Bidleman. 


WILLIAM  A.  WHARTON  agt.  JOHN  BARRY. 

December  Term,  1844,  BRONSON,  J.,  presiding. 
MOTION  by  defendant  to  change  venue. 

R.  J.  HILTON,  defendants  counsel. 

A.  BECKER,  defendant's  attorney. 

J.  DAVIS,  plaintiff's  counsel. 

0.  H.  CHITTENDEN,  plaintiff's  attorney. 

Denied  with  costs,  on  a  defective  affidavit  of  merits.  That 
part  of  the  affidavit  is  as  follows :  "  The  defendant  has  a  good 
substantial  defence  therein  upon  the  merits,  as  he  is  advised 
by  the  counsel  above  named,  and  verily  believed  to  be  true." 
The  word  believed  should  be  believes.  Plaintiff 's  counsel  alleged 
the  same  point  had  before  been  decided  by  Judge  Co  WEN. 


ANTHONY  MASON  agt  DANIEL  BIDLEMAN. 

Defendant  not  allowed  to  set  aside  an  inquest,  where  be  appeared  and  cross-ex- 
amined witnesses,  took  exceptions,  and  made  a  case,  which  was  settled  by  the 
circuit  judge.  An  affidavit  of  merits,  made  by  defendant's  agent,  defective, 
where  there  was  no  excuse  why  it  was  not  made  by  defendant  himself. 

December  Term,  1844,  BRONSON,e7".,  presiding. 

MOTION  by  defendant  to  set  aside  verdict  taken  on  an  in- 
quest 

Defendant's  papers  show  that  at  the  circuit  an  affidavit  of 
merits  was  filed  and  served,  which  was  sworn  to  by  defend- 
ant's general  agent,  stating  that  such  agent  signed  the  note  on 
which  the  suit  was  brought,  and  knew  the  facts  of  the  case,  &c., 
but  gave  no  excuse  why  the  affidavit  was  not  made  by  the  de- 


NFW-YORK  PRACTICE  REPORTS.  63 

Do  Dewandelaer  agt.  Hager. 

fendant.     The  circuit  judge  held  the  affidavit  of  merits  insuf- 
ficient and  permitted  an  inquest. 

*Plaintiff 's  papers  show,  that  on  the  inquest,  the  de-     [*63] 
fendant's  counsel  appeared,  cross-examined  the  plain- 
tiff's witnesses,  offered  evidence  which  was  overruled,  took 
exceptions,  and  that  since  the  trial  a  case  has  been  made  by 
defendant's  attorney,  and  settled  by  the  circuit  judge. 

A.  TABER,  defendant's  counsel. 
E.  CARTER,  defendant's  attorney. 
C.  M.  JENKINS,  plaintiff's  counsel. 

B.  L.  BESSAC,  plaintiff 's  attorney. 

PER  CTJRIAM.— -The  inquest  was  regular,  and  although  the 
affidavit  of  merits  produced  on  the  motion  is  sufficient,  yet  the 
defendant  having  made  a  case,  must  rely  upon  it ;  he  cannot 
take  the  double  chance  of  defeating  his  adversary. 
jnxfiJKi  hove: 4  f;Vi;il  jMj;-r-'ic-.  .H.tr>: 

Decision. — Motion  denied  without  prejudice. 


GANSEVOORT  DE  DEWANDELAER  agt.  ADAM  H.  .HAGER 

et  al. 

Motion  to  set  aside  default,  etc.,  denied  with  costs,  for  the  reason  that  the  mo- 
tion should  have  been  made  before :  too  much  delay. 

December  Term,  1844,  BRONSON,  J".,  presiding. 

MOTION  by  defendant  Hager  to  set  aside  default  and  subse- 
quent proceedings. 

This  suit  was  commenced  early  in  April  last,  and  judgment 
perfected  therein  by  default  on  the  3d  of  May  last.  Defend- 
ant's agent,  who  resides  in  New- York,  who  has  charge  of  the 
subject  matter  of  this  suit,  did  not  get  the  declaration,  which 


(J3  NEW-YORK  PRACTICE  REPORTS. 

Borst  agt  Bovee. 

was  served  on  defendant,  (who  resides  in  Schoharie  county,) 
until  judgment  had  been  perfected.  That  immediately  on 
learning  of  a  judgment,  he  took  measures  to  make  application 
at  August  term,  to  set  same  aside,  but  not  being  able  to  pro- 
cure the  necessary  papers,  the  motion  was  not  made  until  Sep- 
tember special  term,  when  the  same  was  denied  with  costs, 
without  prejudice,  on  the  ground  that  no  sufficient  excuse  was 
shown  for  not  making  the  motion  at  the  August  term.  After 
September  term,  lie  took  measures  to  procure  the  necessary 
papers  for  the  motion,  and  did  not  succeed  in  getting  them 
completed  until  the  middle  of-October. 

M.  T.  REYNOLDS,  defendant1  s  counsel. 
JOHN  W.  EDMONDS,  defendant's  attorney. 
N.  HILL,  JR.,  plaintiff's  counsel. 
B.  H.  CUSHNEY,  plaintiff's  attorney. 

PER  CURIAM. — Too  late,  should  have  moved  before. 
Decision. — Motion  denied,  with  costs. 


PETER  J.  BORST  et  al.  agt.  PHILIP  V.  BOVEE. 

December  Term,  1844,  BRONSON,  J.,  presiding. 
MOTION  by  defendant  for  judgment  as  in  case  of  nonsuit 
This  is  an  action  of  replevin ;  two  circuits  have  passed,  and 
the  plaintiff  has  not  noticed  the  cause  at  either.    The  defend- 
ant's papers  do  not  show  that  the  cause  was  not  tried. 

[*64]     *N.  HILL,  JR.,  defendant's  counsel 
D.  P.  COREY,  defendant's  attorney. 
P.  POTTER,  plaintiff's  counsel  and  attorney. 


NEW-YORK  PRACTICE  REPORTS.  64 

Felt  agt.  Hydo. 

PER  CURIAM. — It  is  not  necessary  to  state  that  the  cause 
was  not  tried,  where  it  is  shown  that  it  was  not  noticed  for  trial. 

Decision. — Motion  granted,  unless  plaintiffs  stipulate  and  pay 
costs  of  this  motion. 


HENRY  FELT  agt.  HIRAM  T.  HYDE,  MORTON  FAIRCHILD 
and  THOMAS  KIRKPATRICK. 

December  Term,  1844,  BRONSON,  J".,  presiding. 

MOTION  by  defendant  Kirkpatrick  for  judgment  as  in  case 
of  nonsuit. 

It  appears  this  suit  was  severed  and  judgment  taken  against 
the  first  two  defendants.  Defendants'  attorney  appeared,  and 
pleaded  for  Kirkpatrick  alone,  and  now  moves  on  papers  en- 
titled with  all  the  defendants. 

H.  C.  WHELPLEY,  defendants1  counsel  and  attorney. 

C.  STEVENS,  plaintiff's  counsel. 

PRUYN  &  SOUTHWICK,  plaintiff's  attorneys. 

PER  CURIAM.  —Defendant's  papers  are  entitled  wrong ;  they 
should  be  entitled  Kirkpatrick  alone. 

Decision. — Motion  denied  with  costs,  without  prejudice. 


64  NEW-YORK  PRACTICE  REPORTS. 

Gifford  agt  BabbotL 


EDWARD  OVERTON  agt.  SANFORD  STANLEY  et  al. 

Plaintiff  baring  entered  defendants'  default  for  not  pleading,  having  forgotten  the 
terms  of  stipulation  between  them,  which  defendants  refused  to  show,  it  was 
set  aside :  costs  to  abide  event 

December  Term,  1844,  BRONSON,  J.,  presiding. 

MOTION  by  defendants  to  set  aside  default  for  not  pleading, 
and  subsequent  proceedings  for  irregularity. 

The  plaintiff  having  given  time  to  plead  by  stipulation  to 
10th  November,  and  forgotten  the  time  thus  given,  entered 
default  for  want  of  plea,  on  the  8th  November.  Defendant 
served  pleas  on  the  9th,  which  plaintiff  returned  by  his  clerk, 
saying  the  default  was  entered ;  that  he  had  forgotten  the 
terms  of  stipulation,  which  defendant's  attorney  refused  to 
show :  Wherefore  motion  was  granted  without  costs,  but  at 
plaintiff's  election  with  cost,  to  abide  the  event. 

A.  TABER,  defendants'  counsel. 

RAYMOND  &  CLARK,  defendant^  attorneys. 

J.  HOLMES,  plaintiff's  counsel. 

J.  W.  &  J.  E.  WHITE,  plaintiff's  attorneys. 

Decision. — Motion  granted  with  costs  of  making  and  oppos- 
ing motion  to  abide  event 


JOHN  GIFFORD  agt.  MILLER  BABBOTT. 

Plaintiff's  excuse  for  leave  to  stipulate  to  try  a  second  time. 

December  Term,  1844,  BRONSON,  J.,  presiding. 
MOTION  by  defendant  for  judgment,  as  in  case  of  nonsuit, 
after  stipulation. 


NEW-YORK  PRACTICE  REPORTS.  65 

Ingraham  agt.  Wheeler. 

Plaintiff's  excuse  for  not  trying  is,  that  about  four 
weeks  previous  *to  the  circuit  one  of  his  material  wit-     [*65] 
nesses  left  for  Michigan  and  some  others  of  the  western 
states,  and  has  not  yet  returned,  but  is  expected  to  return  this 
season.    Soon  after  serving  notice  of  trial  in  the  cause,  plain- 
tiff ascertained  said  witness  had  gone,  and  immediately  coun- 
termanded the  notice. 

E.  W.  PECKHAM,  defendant's  counsel. 
THOS.  H.  FLANDRAN,  defendant's  attorney. 
J.  EDWARDS,  plaintiff's  counsel. 
W.  &  C.  TRACEY,  plaintiff's  attorneys. 

PER  CURIAM. — The  excuse  is  sufficient  for  plaintiff  to  renew 
his  stipulation. 

Decision. — Motion  granted  unless  plaintiff  renew  his  stipu- 
lation to  try  at  the  next  Oneida  circuit,  and  pay  costs  of  circuit 
up  to  notice  of  countermand,  and  ten  dollars  costs  of  this 
motion. 


CURTICE  INGRAHAM,  Plaintiff  in  error,  agt.  ELIJAH  WHEELER, 
Defendant  in  error. 

The  sufficiency  of  a  certificate  of  an  associate  judge  of  the  common  pleas  to  cany 
the  cause  to  the  supreme  court. 

December  Term,  1844,  BRONSON,  «7.,  presiding. 

MOTION  by  defendant  in  error  to  quash  the  writ  of  error, 
and  to  set  aside  all  subsequent  proceedings  on  the  part  of 
plaintiff  in  error,  for  the  want  of  a  sufficient  certificate  that 
the  said  cause  is  a  proper  one  to  be  carried  to  the  supreme 
court,  in  accordance  with  the  statute. 

The  facts  appear  to  be  that  a  certificate,  according  to  the 
statute,  was  presented  to  an  associate  judge  of  the  common 

VOL.  I.  1 


65  NEW-YORK  PRACTICE  REPORTS. 

Jennings  agt.  Holbert 

pleas  for  signature,  dunng  the  absence  of  the  first  judge  from 
the  county ;  before  being  signed  by  the  associate  judge  the 
first  judge  returned,  and  a  consultation  was  had  between  the 
judges  on  the  subject  (both  having  heard  the  argument  of  the 
cause  on  the  certiorari  in  the  common  pleas).  After  such 
consultation,  on  production  of  the  certificate  signed  by  the 
associate  judge,  and  on  application,  the  first  judge  reiused  to 
allow  a  writ  of  error,  and  gave  as  his  opinion,  that  the  cer- 
tificate had  been  unadvisedly  given.  The  associate  judge 
having  signed  the  certificate  on  the  day  of  the  consultation 
with  the  first  judge,  as  of  the  day  when  the  same  was  received 
by  him. 

S.  H.  HAMMOND,  defendants  counsel. 
RATHBUN  &  WALKER,  defendant' a  attorneys. 
N.  HILL,  JR.,  plaintiff's  counsel. 
CLARK  &  THOMPSON,  plaintiff's  attorneys. 

The  certificate  held  good,  the  associate  judge  having  acquired 
jurisdiction. 

Decision. — Motion  denied  with  costs. 


[*66]    *MARY  JENNINGS  et  al  agt.  HEZEKIAH  HOLBERT. 

Plaintiff  bound  to  pay  defendant's  costs  for  preparing  for  trial,  where  plaintiff 
countermanded  his  notice  of  trial  before  the  circuit,  although  issues  of  a  later 
date  were  not  tried. 

December  Term,  1844,  BRONSON,  «/".,  presiding. 

MOTION  by  defendant  that  plaintiffs  pay  the  defendant's 
costs  of  preparing  for  trial,  after  notice  of  trial  and  prior  to 
countermand. 

Notice  of  trial  was  served  for  last  September  circuit,  and 
subsequently  (about  four  days  before  the  circuit)  counter- 


NEW-YORK  PRACTICE  REPORTS.  66 

Parow  agt.  Gary. 

manded.  Defendant  had  incurred  expenses  after  notice  and 
before  countermand,  in  preparing  for  the  trial,  the  costs  taxed 
and  served,  and  not  paid  by  plaintiffs.  Plaintiffs  state  that  no 
issues  of  so  late  a  date  as  the  above  were  reached  or  tried  in 
their  regular  order  on  the  calendar. 

• 

S.  H.  HAMMOND,  defendant's  counsel. 
B.  F.  DUNNING,  defendants  attorney. 
B.  J.  HILTON,  plaintiffs1  counsel. 
J.  "W.  GOTT,  plaintiffs'  attorney. 

Decision. — Motion  granted  with  costs. 

Two  other  causes  between  the  same  attorneys,  on  the  same 
facts,  decided  the  same. 


FRANCIS  PAROW  agt.  JAMES  GARY. 

The  recognition  of  an  individual  as  an  attorney  of  the  court,  before  his  actual  ad- 
mission, by  receiving  papers  from  him  as  such,  waives  the  objection  to  his  ad- 
mission at  the  time  of  such  recognition. 

December  Term,  1844,  BRONSON,  Ji,  presiding. 

MOTION  by  plaintiff  to  set  aside  and  vacate  an  order  of  su- 
preme court  commissioner  staying  proceedings  and  extending 
defendant's  time  to  put  in  special  bail,  for  irregularity. 

The  grounds  relied  on  in  this  motion  are,  that  the  defend- 
ant's attorney  was  not  an  attorney  of  this  court  at  the  time  he 
was  retained  by  defendant  in  this  cause,  which  was  on  the  day 
of  his  arrest  on  the  capias.  Defendant's  attorney  states  that 
since  he  was  admitted  as  an  attorney  of  this  court,  his  acts 
have  been  recognized  and  sanctioned  by  the  defendant's  agent, 
and  have  been  recognized  by  plaintiff's  attorney,  and  are  so 
recognized  by  his  papers  for  this  motion. 


66  NEW-YORK  PRACTICE  REPORTS. 

Rose  agt.  Hogeboom. 

C.  STEVENS,  plaintiff's  counsel. 
N.  BENNETT,  plaintiff's  attorney. 
H.  H.  MARTIN,  defendant's  counsel. 
X.  D.  FREEMAN,  defendant's  attorney. 


Decision. — Motion  denied  with  costs. 


JAMES  R.  HOSE  agt  DAVID  HOGEBOOM  et  at 

A  supreme  court  commissioner  has  power  to  make  a  second  order,  extending 
time  to  reply. 

December  Term,  1844,  BRONSON,  «/.,  presiding. 

MOTION  by  plaintiff  to  set  aside  default  for  not  replying 
and  subsequent  proceedings  for  irregularity. 

The  plaintiff  obtained  a  second  order  from  a  supreme  court 
commissioner  extending  the  time  to  reply  in  this  cause.  The 
last  order  was  treated  as  a  nullity  by  defendants  attorneys 
and  plaintiff's  default  entered.  Defendants  allege  that  under 
the  95th  rule  a  supreme  court  commissioner  cannot  make  a 
second  order  extending  time  to  reply. 

[*67J    *JAS.  R.  ROSE,  counsel  and  attorney  in  pro.  per. 
S.  H.  HAMMOND,  defendants'  counsel. 
HAMMOND  &  WEED,  defendants'  attorneys. 

Decision. — The  order  was  held  good,  and  motion  granted, 
with  costs. 


NEW-YORK  PRACTICE  REPORTS. 
People  agt.  Brown. 


THE  PEOPLE  agt.  LORENZO  BROWN,  Sheriff,  &c. 

Where  the  proper  proof  is  filed  on  issuing  an  attachment  against  a  sheriff,  it  is 
not  necessary,  on  issuing  a  second  attachment,  to  file  any  other  proof. 

December  Term,  1844,  BRONSON,  J.,  presiding. 

MOTION  by  defendant  to  set  aside  a  second  attachment  for 
irregularity. 

It  appears  that  a  former  attachment  was  issued  against  the 
defendant  as  sheriff  for  not  returning  an  execution.  Upon 
entering  the  default  on  the  first  attachment  the  proper  proof 
was  filed,  that  the  execution  was  delivered  to  the  sheriff,  and 
had  not  been  returned,  &c.  A  negotiation  ensued  by  which 
the  proceedings  on  the  first  attachment  was  settled  condition- 
ally ;  the  conditions  not  having  been  complied  with  on  the 
part  of  the  sheriff,  his  default  was  again  entered  without  any 
proof  of  the  delivery  and  no  return  of  the  execution,  &c. 

The  defendant  moves  on  the  ground  that  the  second  attach- 
ment is  irregular  for  the  reason  that  no  such  proof  was  filed 
upon  issuing  the  same. 

C.  H.  BRAMHALL,  sheriff's  counsel. 

THOS.  J.  DUDLEY,  attorney  for  sheriff. 

J.  A.  MILLARD,  relator's  counsel  and  attorney. 

It  was  held  that  the  proof  filed  on  the  issuing  of  the  first 
attachment  enured  to  the  benefit  of  and  was  sufficient  for  the 
issuing  of  the  second. 

Decision. — Motion  denied,  without  costs. 


NEW-YORK  PRACTICE  REPORTS. 


Billings  agt  Cook. 


ALBERT  BILLINGS  agt.  OLIVER  COOK. 

A  plea  may  be  withdrawn  or  stricken  out  by  the  party  pleading,  before  issue 
joined,  of  course ;  without  leave  of  the  court. 

December  Term,  1844,  BRONSON,  «7.,  presiding. 

MOTION  by  plaintiff  to  set  aside  defendant's  amended  pleas 
and  joinder  in  demurrer  for  irregularity. 

The  declaration  contained  three  counts ;  defendant  pleaded 
five  pleas :  the  plea  of  general  issue  and  four  special  pleas. 
The  plaintiff  demurred  to  each  of  the  special  pleas,  with  a  no- 
tice to  join  in  demurrer.  The  defendants  joined  in  demurrer 
to  the  fifth  plea,  and  amended  the  second,  third  and  fourth 
pleas,  by  sinking  out  the  second  plea,  and  altering  the  third  and 
fourth  in  point  of  form.  The  pleas  as  amended  were  filed, 
and  copies  served  and  noticed  to  plaintiff,  giving  information 
as  to  what  the  amendments  consisted  in.  The  plaintiff  in- 
sisted that  the  defendant  could  not  amend  under  the  23d  rule 
by  striking  out  or  withdrawing  a  plea ;  that  it  could  not  be 
done  without  leave  of  the  court. 

F.  H.  HASTINGS,  plaintiff's  counsel. 

G.  BAILEY,  plaintiff's  attorney. 
N.  HILL,  JR.,  defendant's  counsel. 
L.  J.  HOWE,  defendant's  attorney. 

[*68]        *It  was  held  that  the  plea  might  be  stricken  out  or 
withdrawn  in  that  stage  of  the  pleadings,  it  worked  no 
jury  to  the  opposite  party. 

Decision. — Motion  denied,  with  costs. 


NEW-YORK  PRACTICE  REPORTS.  68 

Sprague  agt.  Mumford. 


ASA  SPRAGUE  agt.  WILLIAM  W.  MUMFORD,  Impleaded,  &c. 

Defendant's  motion  to  set  aside  an  inquest  for  irregularity  was  denied,  because  he 
had  not  used  due  diligence  in  finding  out  wherein  plaintiff  had  amended  his 
declaration  (by  changing  the  venue,)  after  being  informed  it  had  been  amended. 

December  Term,  1844,  BRONSON,  Jn  presiding. 

MOTION  by  defendant  to  set  aside  inquest  for  irregularity. 

This  suit  was  commenced  by  writ  of  scire  facias.  The  venue 
in  the  declaration  was  laid  in  Oneida  county.  After  the  de- 
fendant had  appeared  and  pleaded,  an  application  was  made 
to  the  court  by  plaintiff  to  amend  the  writ,  which  was  granted, 
and  the  venue  in  the  declaration  was  changed  to  the  county 
of  Jefferson.  After  notice  of  trial  was  served  for  Jefferson 
circuit,  the  defendant  on  inquiry  of  plaintiff's  attorneys  to 
know  whether  the  venue  had  been  changed,  was  informed  that 
the  declaration  had  been  amended  and  served,  but  in  what 
particular  the  amendments  consisted  they  were  then  unable  tc 
state,  as  the  papers  were  not  before  them.  The  plaintiff  did 
not  attend  the  circuit,  and  inquest  was  taken  by  default 

M.  T.  REYNOLDS,  defendant's  counsel. 
W.  W.  MUMFORD,  defendant  in  pro.  per. 
J.  A.  SPENCER,  plaintiff's  counsel. 
SPENCER  &  KERNAN,  plaintiffs  attorneys. 

PER  CURIAM.  —The  defendant  did  not  use  due  diligence  in 
ascertaining  in  what  particular  the  declaration  had  been 
amended,  after  he  was  informed  it  was  amended. 

Decision. — Motion  denied  with  costs. 


63  NEW-YORK  PRACTICE  REPORTS. 

Howe  agt  Haabrouck. 


JAMES  HOWE  agt  ISAAC  L.  HASBROUCK. 

An  affidavit  of  merits  filed  at  the  circuit  held  defective,  because  it  stated  that  the 
defendant  had  a  good  defence,  etc.,  "  to  the  plaintiff  declaration  filed  in  thu 
suit." 

December  Term,  1844,  BRONSON,  J.,  presiding. 
MOTION  by  defendant  to  set  aside  inquest  for  irregularity.- 
The  inquest  was  taken  out  of  its  order  on  the  calendar. 
Defendant  showed  that  an  affidavit  of  merits  was  filed,  and  that 
the  cause  could  not  have  been  reached  in  its  regular  order  on 
the  calendar.     Plaintiff  produced  a  copy  of  the  affidavit  of 
merits,  and  insisted  that  it  was  defective.    That  part  of  the 

affidavit  to  which  objection  was  made,  reads  as  follows :  " 

duly  sworn,  saith  that  he  has  fully  and  fairly  stated  his  case 

and  defence  in  said  suit  to  A.  B.  of  ,  his  counsel,  and  is 

advised  by  his  said  counsel  and  verily  "believes  that  he  has  a 
good,  valid  and  sufficient  defence  upon  the  merits  in  the  above 
entitled  cause  to  the  plaintiff's  declaration  filed  in  ttiis  suit,  and 
farther  saith  not."  The  defendant  swears  to  merits  on  this 
motion. 

A.  TABER,  defendants  counsel. 

ROMEYN  &  WESTBROOK.  defendants  attorneys. 

H.  C.  WHELPLEY,  plaintiff's  counsel  and  attorney. 

The  affidavit  of  merits  filed  at  the  circuit  was  held  bad. 
Defendant  let  in  on  terms. 

Decision. — Motion  granted  on  payment  of  costs  of  circuit 
and  subsequent  proceedings  and  costs  of  opposing  this  motion, 
and  cause  referred. 


NEW- YORK  PRACTICE  REPORTS.  69 

Ogden  agt.  Betts. 


*THOMAS  L.  OGDEN  et  al  agt.  SETH  BEEBE.     [*69] 

In  a  number  of  causes  between  the  same  plaintiffs  and  different  defendants,  all 
involving  the  same  questions  of  law,  a  part  being  noticed  for  trial,  and  part 
not,  and  a  verdict  rendered  for  defendant  in  one  of  them,  and  exceptions  taken 
by  plaintiffs,  the  defendants  ara  not  entitled  to  judgment  as  in  case  of  nonsuit 
in  those  not  noticed  for  trial,  until  the  questions  excepted  to  in  the  one  tried 
and  decided. 

February  Term,  1845. 

MOTION  by  defendant  for  judgment  as  in  case  of  nonsuit. 

The  defendant  founded  his  motion  upon  the  usual  affidavit, 
that  the  cause  was  not  noticed  at  the  last  November  circuit, 
and  that  younger  issues  were  tried  at  said  circuit.  The  plain- 
tiffs show  that  there  is  twenty-one  other  causes  of  the  same 
kind  (being  actions  of  trover),  between  the  same  plaintiffs  and 
different  defendants  ;  that  fifteen  of  said  causes  were  noticed 
for  trial  at  said  November  circuit,  one  of  which  was  tried  and 
a  verdict  rendered  for  defendant.  Exceptions  were  taken  by 
plaintiffs  for  the  purpose  of  naving  the  questions  of  law  settled 
by  this  court  or  the  court  for  the  correction  of  errors,  and  the 
circuit  judge  refused  to  try  at  said  circuit,  either  of  the  other 
causes  which  involved  the  same  questions  of  law.  The  de- 
fendant now  moves  for  judgment  as  in  case  of  nonsuit  in  this 
and  the  six  other  causes  involving  the  same  question,  which 
were  not  noticed  at  said  November  circuit. 

M.  FILLMORE,  defendant's  counsel 
I.  E.  IRISH,  defendants  attorney. 
ROGERS,  plaintiffs'  counsel. 
C.  R.  LELAND,  plaintiffs'  attorney. 

*BEARDSLEY,  Justice.  Motion  denied.  Costs  of  [*70] 
opposing  motion  to  abide  event. 


70  NEW-YORK  PRACTICE  REPORTS. 

Parent  agt  Kellogg. 


MARTIN  HEMINGWAY  agt  FRANKLIN  SPAULDING. 

A  defendant  moving  to  change  the  venue,  most  show  in  bis  affidavit,  that  he  has 
stated  to  hi*  counsel  what  he  expects  to  prove  by  hit  witnesses,  in  addition  to  the 
statement  of  their  materiality  generally. 

February  Term,  1845. 

MOTION  by  defendant  to  change  the  venue. 

The  defendant's  affidavit  upon  which  he  moves  does  not 
state  that  he  has  stated  to  his  counsel  what  he  expects  to  prove  by 
his  witnesses,  which  he  swears  are  material  on  his  defence. 

F.  U.  FENNO,  defendants  counsel  and  attorney. 

C.  STEVENS,  plaintiff's  counsel. 

W.  E.  WEBSTER,  plaintiff's  attorney. 

BEARDSLEY,  Justice.  The  affidavit  is  defective.  Motion 
must  be  denied  with  costs.  Kule  accordingly. 


JOHN  PARENT  agt.  AUGUSTIN  KELLOGG  et  al. 

Where  a  party  to  a  judgment  in  the  common  pleas  moves  to  set  aside  an  execu- 
tion issued  on  a  judgment  in  this  court,  as  conflicting  with  his  interest,  he 
must  entitle  his  papers  in  both  causes. 

February  Term,  1845. 

MOTION  by  defendants  and  one  John  H.  Tomlinson  to  set 
aside  the  execution  issued  in  this  cause. 

It  appears  that  said  Tomlinson  obtained  a  judgment  in  the 
Onondaga  common  pleas,  against  two  of  the  defendants  in  this 
suit,  prior  to  the  judgment  in  this  cause,  and  got  a  stipulation 


NEW-YORK  PRACTICE  REPORTS.  70 

Bell  agt.  BelL 

in  writing  from  the  plaintiff  in  this  cause,  not  to  issue  his 
execution  to  the  sheriff  of  Onondaga  without  giving  him, 
Tomlinson,  thirty  days'  notice  of  his  intention  to  do  so ;  the 
judgment  in  this  cause  was  subsequently  assigned  to  one  Pratt, 
who  gave  notice  to  defendants  of  the  assignment,  and  there- 
after issued  execution  to  Onondaga  county  sheriff,  without 
giving  notice  to  Tomlinson  according  to  the  stipulation.  The 
defendant's  papers  are  entitled  in  this  cause  only. 

SEDGWICK,  defendants'  counsel. 

GEO.  A.  STANSBURY,  defendants'  attorney. 

S.  P.  NASH,  plaintiff's  counsel 

J.  L.  B AGG,  plaintiff"  's  attorney. 

BEARDSLEY,  Justice.  The  defendants'  papers  should  be 
entitled  in  both  causes.  Motion  denied  with  costs,  without 
prejudice. 


*WILLIAM  A.  BELL,  Administrator,  &c.  agt.  CHARLES    [*71] 

A.  BELL. 

A  release  of  errors  in  a  warrant  of  attorney,  does  not  authorize  the  issuing  of  a 
fi.  fa.  within  thirty  days  from  the  entry  of  judgment ;  but,  if  directions  are 
given  by  the  defendant  as  to  the  payment  of  the  money  collected  or  to  be  col- 
lected on  the  fi.  fa.,  which  is  issued  in  less  than  thirty  days  from  the  entry  ot 
judgment,  the  irregularity  is  waived. 

February  Term,  1845. 

MOTION  by  defendant  to  set  aside  execution. 

The  defendant  moves  to  set  aside  execution  issued  on  a 
judgment  confessed  on  bond  and  warrant  of  attorney,  on  the 
grounds  that  it  was  issued  before  the  expiration  of  thirty  days 
after  the  entering  of  judgment.  The  plaintiff  insists  that  the 
release  of  errors  in  the  warrant  of  attorney  authorized  the 
issuing  of  the  execution  at  any  time,  and  releases  all  errors 
in  the  issuing,  as  well  as  the  form  of  execution. 


71  NEW-YORK  PRACTICE  REPORTS. 



Platt  agt.  Bodine. 

NELSON,  Chief  Justice.  We  have  decided  that  point 
against  you. 

The  plaintiff  then  read  affidavit,  showing  that  after  the  fi. 
fa.  was  issued  and  a  levy  made  by  the  deputy  sheriff,  the 
deputy  sheriff  told  the  defendant  that  he  had  received  notice 
from  plaintiff's  attorney  that  some  of  the  money  to  be  col- 
lected must  be  paid  to  plaintiff's  attorney,  and  not  to  the 
plaintiff.  To  this  the  defendant  replied,  that  the  deputy 
sheriff  must  not  pay  anything  to  plaintiff's  attorney,  but 
must  pay  all  he  collected  on  the  fi.  fa.  to  the  plaintiff  in 
person. 

NELSON,  Chief  Justice.  That  was  a  waiver  of  the  irregu- 
larity. 

Decision. — Motion  denied,  with  costs. 


GEORGE  W.  PLATT  et  dl.  agt.  EICHARD  D.  LITTELL,  JOHN 
TOTTEN  and  JACOB  BODINE. 

Under  the  84th  rule,  joint  defendants  in  assumpsit  appearing  in  good  faith  by 
different  attorneys  (except  attorneys  separately  appearing  who  are  partners  in 
business),  are  each  entitled  to  move  for  judgment  as  in  case  of  nonsuit 

February  Term,  1845 

MOTION  by  each  defendant  for  judgment  as  in  case  of  non- 
suit. 

In  this  cause,  which  appears  on  the  papers  to  be  assumpsit 
against  the  defendants  jointly,  each  of  the  defendants  gave  a 
separate  notice  of  motion  for  judgment  as  in  case  of  nonsuit. 
Affidavits  were  read  in  opposition  to  excuse  the  omission  to 
try  the  cause  at  the  circuit  for  which  it  was  noticed,  but  which 
were  held  insufficient  for  that  purpose.  It  was  then  objected, 


NEW-YORK  PRACTICE  REPORTS.  fl 

Gale  agt.  Hoysradt. 

i 

that  the  defendants,  Littell  and  Bodine,  had  appeared  and 
moved  separately  by  attorneys  who  were  partners  in  business 
for  the  purpose  of  increasing  costs,  and  the  court  granted  the 
motions,  unless  plaintiffs  stipulate,  &c.,  but  with  costs  of  but 
one  motion. 

*The  third  motion  in  behalf  of  defendant  Totten  no-  [*72] 
ticed  by  a  different  attorney,  was  also  granted,  unless, 
&c.,  with  costs  of  motion ;  it  being  the  opinion  of  the  court  that 
under  the  84th  standing  rule,  joint  defendants  in  assumpsit 
appearing  in  good  faith  by  different  attorneys,  were  each 
entitled  to  move. 

ftiSJ   Hi    '<.'• 

S.  SHERWOOD,  counsel  for  defendant  Bodine. 
F.  S.  KINNEY,  attorney  for  defendant  Bodine. 
E.  W.  PECKHAM,  counsel  for  defendant  Littell. 

E.  "W.  TOWNSEND,  attorney  for  defendant  Littell. 

F.  H.  HASTINGS,  counsel  for  defendant  Totten. 
GIBBS  &  BECKWITH,  attorneys  for  defendant  Totten. 
A.  TABER,   counsel  for  plaintiff . 

E.  W.  CONE,  attorney  for  plaintiff. 

Eules  according  to  the  above  decisions. 


JOSEPH  GALE  agt.  JOHN  HOYSRADT. 

A  plaintiff  in  replevin  may  suffer  a  nonsuit  on  the  trial,  as  in  ordinary  actions. 
A  verdict  is  irregular  if  the  plaintiff  is  not  called  by  the  clerk  on  the  coming 
in  of  the  jury,  before  taking  the  verdict,  and  his  appearance  or  default  entered. 

February  Term,  1845. 

MOTION  by  plaintiff  to  set  aside  verdict  in  replevin,  on  the 
ground  of  irregularity. 

The  principal  facts  in  this  case  are  reported  at  page  19  of 
the  Special  Term  Reports  ;  there  is,-  however,  additional  testi- 


72  NEW-YORK  PRACTICE  REPORTS. 

Weed  agt.  Halladay. 

monj  to  the  same  point  produced  at  this  term,  the  point  is, 
that  the  plaintiff  was  not  called  by  the  clerk  on  the  coming 
in  of  the  jury,  that  he  did  not  appear  and  answer  before  the 
verdict  was  rendered. 

J.  H.  REYNOLDS,  plaintiff's  counsel  and  attorney. 
G.  W.  BUCKLEY,  defendant's  counsel  and  attorney. 

BEARDSLEY,  Justice.  The  plaintiff  in  replevin  may  suffer 
a  nonsuit  on  the  trial,  as  in  ordinary  actions.  (Tidd's  Pr.  Phil, 
ed.  of  1840,  p.  869  ;  Ryan  &  M.  355 ;  2  C.  &  P.  358 ;  2  R.  S. 
531,  §§  53,  56.)  Without  going  over  what  appears  in  the 
affidavits  pro  and  con,  I  am  satisfied  the  plaintiff  was  not 
called  on  the  return  of  the  jury  to  the  bar,  before  taking  the 
verdict.  That  should  have  been  done,  and  the  appearance  or 
default  of  the  party  entered  by  the  clerk ;  upon  a  fact  so  vital 
there  should  be  no  room  to  doubt.  This  verdict  was  irregu- 
lar, and  must  be  set  aside,  but  as  it  was  a  mistake  of  the  clerk, 
no  costs  should  be  given  to  either  party. 

Rule  accordingly. 


[*73]      *JAMES  M.  WEED  agt.  SMITH  S.  HALLADAY. 

The  greatest  number  of  witnesses  in  opposition  to  a  motion  to  change  venue, 
will  not  prevail  to  retain  the  venue  under  all  circumstances. 

February  Term,  1845. 

MOTION  by  defendant  to  change  the  venue  from  New- York 
to  Niagara. 

Defendant  swears  to  twelve  witnesses  in  Niagara  and  five  in 
Erie.  And  twenty-four  are  sworn  to  on  the  part  of  the  plain- 
tiff as  residing  in  New  York.  The  action  is  stated  to  be  on  a 
promissory  note  given  for  a  bill  of  merchandise.  The  defend- 
ant's affidavit  states  that  if  the  plaintiff  should  claim  to  have 


NEW-YORK  PRACTICE  REPORTS.  73 

McCartney  agt.  Betts. 

more  than  two  witnesses  in  New-York,  one  his  book-keeper 
or  clerk,  whose  name  is  not  remembered,  and  the  other  one 
Hasbrook,  they  can  only  be  material  for  the  purpose  of  prov- 
ing the  handwriting  of  the  defendant,  which  may  as  well  be 
proved  by  witnesses  residing  in  Niagara,  where  the  defendant 
resides  and  has  resided  for  several  years.  No  answer  is  given 
by  the  plaintiff  to  this  statement. 

S.  P.  NASH,  defendants  counsel. 
E.  NEWTON,  defendants  attorney. 
C.  P.  KIRKLAND,  plaintiffs  counsel. 
E.  W.  WILLIAMS,  plaintiff's  attorney. 

BEARDSLEY,  Justice.  Upon  these  papers,  we  must  intend 
that  twenty-two  of  the  plaintiff's  witnesses  are  deemed  to  be 
necessary  to  prove  the  defendant's  handwriting,  a  fact  which 
can  as  well  be  heard  by  witnesses  residing  in  Niagara,  as  those 
who  reside  in  New- York.  (Benedict  agt.  Hibbard,  5  Hill,  509.) 
The  motion  must  be  granted. 

Eule  accordingly. 


MATTHEW  MCCARTNEY  agt.  HENRY  H.  BETTS. 

The  original  affidavit  accompanying  a  plea  must  be  served,  a  copy  served  ia  not 
a  compliance  with  the  rule. 

February  Term,  1845. 

MOTION  by  defendant  to  set  aside  default,  &c.,  with  costs. 

Action,  assumpsit,  declaration  contains  a  count  for  goods, 
wares,  &c.,  sold  and  delivered  and  the  usual  money  counts  ; 
venue  laid  in  Livingston  county ;  declaration  served  on  de- 
fendant 21st  November  last.  On  the  llth  December  last  a 
plea  and  affidavit  were  drawn  and  sworn  to  by  defendant,  and 
copies  were  served  on  the  clerk  at  Albany,  (defendant's  attor- 


Y3  NEW-YORK  PRACTICE  REPORTS. 

Hart  agt.  McGarry. 

ney  residing  at  Troy,)  for  plaintiff's  attorney  residing  in 
Livingston  county.  Plaintiff's  attorney  had  entered  default 
and  judgment,  before  receiving  the  copy  plea  and  affidavit. 
On  their  receipt  (the  19th  December,  1844),  he  immediately 
wrote  defendant's  attorney,  and  closed  the  copy  plea  and  affi- 
davit, with  objections  to  the  affidavit,  stating  that  the 
[*74]  rule  *required  the  original  affidavit  to  be  served,  &c., 
and  offered  to  open  default  on  conditions,  one  of  which 
was  that  judgment  should  stand  as  security,  to  which  defend- 
ant's attorney  refused  to  accede  and  insisted  he  was  regular. 
It  is  not  questioned  that  this  was  a  case  in  which  the  plea 
should  be  sworn  to  under  the  rule. 

A.  K.  HADLEY,  defendant's  counsel  and  attorney. 
P.  GANSEVOORT,  plaintiff's  counsel. 
S.  HUBBARD,  plaintiff's  attorney. 

BEARDSLEY,  Justice.  If  service  of  copy  affidavit  was  not 
sufficient,  then  the  default  was  regular,  and  defendant  must 
be  let  in  on  terms,  the  judgment  standing  as  security.  The 
original  affidavit  should  have  been  served,  a  copy  was  not  a 
compliance  with  the  rule  (22  Wend.  644,  note ;  Laws  1840,  p. 
333,  §  7  ;  25  Wend.  699).  On  payment  of  the  costs  of  enter- 
ing the  default  and  all  subsequent  proceedings,  including  the 
costs  of  opposing  this  motion,  the  defendant  may  be  let  in  to 
plead,  the  judgment  standing  as  security. 

Eule  accordingly. 


HENRY  HART  agt.  DANIEL  MCGARRY. 

The  advice  of  an  attorney  is  not  the  advice  of  counsel  on  an  affidavit  of  merits 
within  the  meaning  of  the  rule. 

February  Term,  1845. 

MOTION  to  set  aside  default  for  not  pleading  and  all  subse- 
quent proceedings,  including  the  execution  issued  on  the 
judgment  with  costs,  &c. 


NEW-YORK  PRACTICE  REPORTS.  74 

The  People  agt.  Perrin. 

The  papers  show  that  the  proceedings  are  regular,  and  the 
only  question  is,  whether  the  defendant  can  be  let  in  on  terms. 
The  action  is  trespass ;  the  defendant's  pecuniary  circum- 
stances are  questionable,  &c.  The  defendant  in  his  affidavit 
states,  "that  he  has  fully  and  fairly  stated  the  case  in  the 
above  entitled  cause  to  Samuel  W.  Jackson,  Esq.,  his  counsel 
in  said  cause,  of  Gilboa,  in  said  county  of  Schoharie,  and  that 
this  deponent  has  a  good  and  substantial  defence  upon  the 
merits  thereof  as  he  is  advised  by  his  said  counsel,"  &c.  It  is 
shown  by  an  opposing  affidavit  that  Jackson  is  not  a  counsel- 
lor of  this  court,  although  he  is  an  attorney. 

S.  P.  NASH,  defendants  counsel. 
S.  "W.  JACKSON,  defendant's  attorney. 
B.  L.  JOICE,  plaintiff's  counsel. 
D.  K.  OLNEY,  plaintiff's  attorney. 

BEARDSLEY,  Justice.  The  advice  of  an  attorney  is  not  the 
advice  of  counsel  within  the  rule,  and  the  motion  must  be 
denied.  But  the  attorney  may  have  been  misled  by  what  was 
said  in  7  Wend.  513,  and  the  denial  is  without  prejudice  to 
the  right  to  renew  the  motion. 

Eule  accordingly. 


*THE  PEOPLE  ex.  rel.  THE  BANK  OF  MONROE  agt.     [*75] 
DARIUS  PERRIN,  late  sheriff  of  Monroe  county. 

A  redemption  of  land  may  be  made  at  any  time  before  the  close  of  the  laat  day 
allowed  by  law  for  the  purpose,  business  hours  are  not  regarded  in  this 
respect. 

One  who  seeks  to  redeem  must  comply  fully  and  strictly  with  the  statute,  or  he 
gains  nothing ;  an  agent  seeking  to  redeem  for  a  mortgage  creditor  must  swear 
to  the  fact  of  his  agency,  and  his  means  of  knowledge  as  to  the  sum  due  on  the 
mortgage,  and  the  sum  stated  on  such  knowledge. 

MOTION  by  relators  for  a  mandamus  on  notice. 

Certain  real  estate  of  Abraham  M.  Schermerhorn  had  been 
sold  on  judgment  and  execution  against  him  by  said  Perrin, 
then  sheriff,  &c.,  the  time  for  redeeming  which  expired  on  the 

VOL.  I.  8 


75  NEW-YORK  PRACTICE  REPORTS. 

The  People  agt.  Perrin. 

15th  May,  1842  (Sunday).  On  the  previous  day  the  bank  of 
Monroe  duly  redeemed  the  said  land,  as  a  judgment  creditor 
of  said  Schermerhorn.  This  was  done  in  the  afternoon  of 
that  day :  and  from  eleven  to  twelve  o'clock  in  the  night  fol- 
lowing, Blatchford,  Graham  &  Curtis,  applied  to  said  sheriff 
to  redeem  said  land,  as  assignees  of  a  mortgage  thereon  given 
by  said  Schermerhorn  to  the  North  American  Trust  and 
Banking  Company.  They  paid  the  proper  amount,  and  the 
only  questions  made  are  whether  a  redemption  at  that  hour 
in  the  night  was  in  time,  and  whether  the  affidavit  to  prove 
the  amount  due  was  sufficient. 

F.  M.  HAIGHT,  attorney  for  relators. 
,  attorney  for  Blatchford  &  Go. 

BEARDSLEY,  Justice.  The  practice  has  been  to  permit  a 
redemption  to  be  made  at  any  time  before  the  close  of  the 
last  day  allowed  by  law  for  the  purpose.  Business  hours  are 
not,  in  this  respect,  regarded.  Whatever  was  done  in  this 
case,  was  therefore  in  season.  It  was  conceded  that  the  bank 
of  Monroe  duly  redeemed,  and  the  whole  question  comes 
down  to  this :  whether  the  purchase  sought  to  be  made  by 
Blatchford,  Graham  and  Curtis,  as  assignees  of  the  mortgage 
to  the  Trust  and  Banking  Company,  was  in  conformity  with 
the  statute  ?  If  it  was,  they  are  entitled  to  a  deed,  otherwise 
the  sheriff  must  convey  to  the  Bank  of  Monroe.  The  exis- 
tence of  the  mortgage  and  its  assignment  are  not  disputed, 
but  it  is  objected  that  the  affidavit  furnished  to  show  what 
remained  due  on  the  mortgage  was  insufficient.  Upon  this 
point  no  affidavit  was  made  by  either  of  the  assignees,  the 
only  proof  furnished  being  the  affidavit  of  Tilly  Allen.  This 
affidavit  was  made  on  the  llth  of  May,  1842,  prefixed  to 
which  is  a  statement  setting  forth  the  date  of  the 
[*76]  ^mortgage,  that  the  amount  of  principal 

remaining  due  thereon  was,  $180,000  00 

And  the  balance  of  interest  to  the  14th  May, 
1842,  37,066  21 

$217,066  21 


NEW-YORK  PRACTICE  REPORTS.  Y6 

The  People  agt.  Perrin. 

The  deponent  is  named  in  the  affidavit  as  agent,  but  it 
omits  to  state,  on  oath,  that  he  was  such  agent  Then  follows 
a  clause  that  said  statement  "  exhibits  a  true  and  correct  ac- 
count of  the  amount  which  will  be  due  upon  the  said  bond 
and  mortgage  on  the  14th  day  of  May  instant,  over  and  above 
all  payments,  as  appears  by  the  books  of  account  of  the  said 
trustees,  and  as  this  deponent  verily  believes."  The  affidavit 
may  be  made  by  the  "  mortgage  creditor,  his  assignee  or  rep- 
resentative, or  by  his  attorney  or  agent,"  but  whether  made 
by  one  or  the  other,  it  must  state  the  "  true  sum  due  or  to  be- 
come due,"  "  over  and  above  all  payments."  '(Laws  1836, p.  793, 
§  2,  sub.  4.)  This  affidavit  is  defective.  It  does  not  appear  to  have 
been  made  by  the  agent  of  the  assignees,  although  the  deponent 
is  therein  named  as  agent.  But  this  is  a  mere  descriptio personce,  ; 
there  is  no  oath  to  the  fact  of  such  agency.  Nor  is  it  shown 
that  the  person  who  made  the  affidavit  had  any  knowledge  of 
the  true  sum  due  or  to  become  due  ;  he  only  speaks  of  what 
appears  by  the  books,  but  of  the  correctness  of  which  he  does 
not  profess  to  have  any  knowledge.  To  be  sure  he  swears  to 
his  belief  that  the  sum  stated  is  correct,  but  that  is  not  suffi- 
cient for  the  purpose.  The  affidavit  should  furnish  the  best 
and  most  satisfactory  evidence  of  what  is  due  ;  another  cred- 
itor may  come  to  redeem,  and  he  is  entitled  to  correct  infor- 
mation on  the  point.  One  who  seeks  to  redeem  must  comply 
fully  and  strictly  with  the  statute,  or  he  gains  nothing.  This 
affidavit  should  have  sworn  to  the  fact  that  the  deponent  was 
agent.  He  should  have  disclosed  his  means  of  knowledge, 
as  to  the  sum  due,  and  the  amount  should  have  been  stated  on 
such  knowledge.  Here  one  of  the  assignees  made  an  affidavit, 
but  he  has  said  nothing  as  to  the  amount  due  and  unsatisfied 
on  the  mortgage.  I  think  the  assignees  failed  to  effect  a  legal 
purchase  of  the  right  to  these  lands,  and  the  Bank  of  Monroe 
is  consequently  entitled  to  a  deed  from  the  sheriff. 

Motion  for  mandamus  granted,  but  no  costs  are  to  be  al- 
lowed to  either  party. 

Eule  accordingly. 


77  NEW-YORK  PRACTICE  REPORTS. 

Barker  agt.  Gates. 

[*77]      *LESTER  BARKER  agt.  WILLIAM  H.  GATES 
JOSEPH  THOMPSON  agt.  WILLIAM  H.  GATES. 

A  sheriff,  in  advertising  and  selling  real  estate  in  separate  parcels  on  a  number 
of  executions  of  different  dates  as  to  liens,  must  apply  the  bid  on  the  first  sale 
in  satisfaction  of  the  oldest  lien.  A  prior  judgment  creditor  as  to  the  youngest 
execution  cannot  redeem  all  the  pieces  sold  by  paying  only  the  amount  of  the 
judgments  older  than  his ;  he  must  pay  the  amounts  bid. 

February  Term,  1845. 

MOTION  by  Gates  and  Thompson  to  set  aside  a  sheriff's  sale, 
and  for  a  mandamus. 

On  the  6th  May,  1842,  a  judgment  was  rendered  by  a  jus- 
tice of  the  peace,  in  favor  of  Noyes  &  Tracy,  against  the  de- 
fendant Gates,  for  $99.30 ;  which,  on  the  same  day,  was  dock- 
eted in  the  office  of  the  clerk  of  Oneida  county.  On  that  day 
two  other  judgments  were,  in  like  manner,  rendered  in  favor 
of  Tracy  &  Tracy  against  the  said  Gates,  and  duly  docketed ; 
each  being  for  $101.15.  On  the  7th  May,  1842,  judgment 
was  rendered  in  the  above  cause  of  Thompson  &  Gates,  for 
debt  $37,000,  and  costs  $11.92 ;  which  was  duly  docketed  on 
that  day.  And  on  6th  August,  1842,  judgment  was  rendered 
in  favor  of  Barker  in  the  above  case,  and  docketed  the  same 
day,  for  $2,036.65.  On  5th  August,  1842,  writs  of/?. /a.  were 
duly  issued  on  the  first  three  judgments  before  mentioned,  to 
the  sheriff  of  the  county  of  Oneida ;  and  shortly  thereafter,  a 
like  writ  was  issued  to  said  sheriff  on  the  judgment  in  favor 
of  Barker.  By  virtue  of  these  writs,  the  real  estate  of  Gates 
was  sold  by  said  sheriff  on  the  14th  October,  1842.  The 
sheriff's  advertisement  stated  he  should  sell  said  real  estate  by 
virtue  of  an  execution  from  the  supreme  court  (meaning  the 
one  in  favor  of  Barker),  and  three  from  the  clerk's  office  of 
the  county  of  Oneida  (meaning  the  aforesaid  three  judgments 
in  favor  of  Noyes  &  Tracy) ;  and  that  he  should  sell  all  the 
right  which  said  Gates  had  on  the  6th  May,  1842.  On  the  day 
of  sale,  the  sheriff  put  up  and  sold  the  land  as  follows :  First, 
the  undivided  half  of  one  hundred  and  twenty  acres,  which 


NEW-YORK  PRACTICE  REPORTS.  fT 

Barker  agt.  Gates. 

was  put  up  and  sold  on  the  execution  in  favor  of  Barker,  and 
one  of  the  executions  in  favor  of  the  Tracys  :  said  land  was 
sold  to  said  Barker  at  $600.  Second,  the  undivided  half  of 
two  acres,  which  was  sold  on  the  Barker  execution,  and  the 
other  execution  in  favor  of  said  Tracjs  :  it  was  sold  to  Barker 
at  $5C.  Third,  about  two  acres  of  land,  which  were  sold  on 
the  two  executions  last  mentioned  and  the  executions  of  Noyes 
&  Tracy :  Barker  became  the  purchaser  at  $600.  Barker 
thereupon  advanced  money  to  pay  off  the  three  judgments  of 
the  6th  May,  1842,  and  the  sheriff's  fees,  and  the  residue  was 
indorsed  on  the  execution  in  his  favor.  Certificates 
for  said  ^pieces  of  land  were  duly  made  to  him  by  [*78] 
the  sheriff,  &c.  On  the  llth  January,  1845,  which 
was  within  the  period  for  redemption,  proper  papers  were 
prepared  by  Thompson,  and  served  on  the  sheriff,  to  whom 
$401.30  were  then  paid,  in  order  to  redeem  said  three  parcels 
of  land  from  said  sale  ;  the  said  Thompson  making  payment 
of  said  sum,  for  the  purpose  of  redeeming  said  three  pieces  of 
land.  The  said  sum  of  $401.30  was  the  amount  of  said  three 
judgments  of  the  6th  May,  1842,  and  interest  and  cost  there- 
on ;  and  it  was  claimed  that  Thompson  was  entitled  to  redeem 
the  same  on  payment  of  that  sum,  without  regard  to  the  resi- 
due of  the  amounts  bid  as  aforesaid.  Noxon  &  Comstock,  on 
behalf  of  Thompson,  now  move  for  a  mandamus  to  compel  the 
sheriff  to  give  him  a  deed  for  said  three  pieces ;  and  if  that 
cannot  be  effected,  then  for  such  relief  as  he  is  entitled  to  on 
these  facts. 

NOXON  &  COMSTOCK,  counsel  for  motion. 

NOXON,  LEAVENWORTH  &  COMSTOCK,  attorneys  for  motion. 

J.  A.  SPENCER,  counsel  for  Barker. 

SPENCER  &  KERN  AN,  attorneys  for  Barker. 

BEARDSLEY,  Justice.  Thompson  is  not  entitled  to  a  deed 
from  the  sheriff  for  the  three  pieces  of  land,  or  either  of  them. 
Barker  had  purchased  these  parcels  of  land  at  the  sher- 
iff's sale,  for  twelve  hundred  and  fifty  dollars ;  and  Thomp- 
son now  seeks  to  acquire  his  rights  by  paying  about  four 


Y8  NEW-YORK  PRACTICE  REPORTS. 

Barker  agt.  Gates. 

hundred  dollars,  the  amount  of  three  judgments  of  the  6th  of 
May,  with  interest  and  such  costs  and  charges  as  are  allowed 
by  the  statute.  But  this  can  only  be  effected  by  paying  the 
fall  amount  bid,  and  not  the  amount  of  any  particular  lien  or 
incumbrance  on  the  land  (2  R.  S.  370,  §  45,  et  seq.)  The 
sheriff  sold  the  first  piece  of  land  on  one  of  three  executions 
which  had  been  issued  on  the  judgments  of  the  6th  of  May, 
and  on  the  execution  in  favor  of  Barker,  issued  on  his  judg- 
ment, which  was  junior  to  that  of  Thompson.  This  was  the 
form  of  the  sale  ;  but  the  sheriff  was  bound  to  apply  the  pro- 
ceeds of  that  sale,  in  the  first  instance,  to  satisfy  the  three  exe- 
cutions on  judgments  of  the  6th  of  May,  before  he  could  ap- 
ply any  part  thereof  on  the  Barker  execution.  Had  this  been 
done,  the  first  three  executions  would  have  been  satisfied  by 
the  proceeds  of  the  piece  of  land  first  sold,  and  the  two  re- 
maining parcels  could  only  have  been  sold  on  the  execution  on 
the  Barker  judgment.  The  sale  was  conducted  irregularly, 
but  it  is  not  now  too  late  to  correct  what  was  amiss,  and  se- 
cure to  the  several  parties  what  they  were  entitled  to.  For 
this  purpose  the  sheriff  should  satisfy  the  first  three  executions 

out  of  the  money  received  by  him  on  the  sale  of  the 
[*79]  first  piece  of  *land,  and  make  return  to  said  executions 

that  they  were  so  satisfied.  And  in  the  deeds  or  deed 
to  be  given  for  the  last  two  pieces,  the  sheriff  will  recite  a  sale 
thereof  on  the  Barker  execution  only,  making  no  mention  of 
or  allusion  to  the  first  three  executions  or  either  of  them. 
The  deed  for  the  first  piece  will  show  a  sale  on  one  or  all  of 
the  executions  of  the  6th  of  May,  so  that  the  purchaser  will 
have  title  to  this  piece  under  a  lien  of  that  date,  although  his 
title  to  the  last  two  parcels  will  rest  solely  on  the  lien  of  the 
judgment  of  the  6th  of  August.  This  will  give  effect  to  the 
sale  according  to  what  was  the  duty  of  the  sheriff  and  the 
rights  of  the  respective  parties.  If  the  judgment  of  Thomp- 
son, as  was  suggested,  is  fraudulent,  Barker  can  take  proper 
steps  to  avoid  it  on  that  ground.  If,  on  the  other  hand,  it  is 
an  honest  security,  no  undue  advantage  over  it  will  have  been 
gained  by  the  manner  in  which  the  sale  was  conducted  by  tho 


NEW-YORK  PRACTICE  REPORTS.  79 

Anderson  agt.  Osborn. 

sheriff.  It  may  be  that  Barker  would  choose  not  to  have  the 
sale  of  the  last  two  pieces  stand,  as  made  upon  his  judgment 
and  execution  alone,  and  on  his  filing  a  statement  to  that  ef- 
fect, within  twenty  days  after  notice  of  this  rule,  an  order  may 
be  entered  vacating  the  sale  of  those  pieces,  and  in  that  event 
the  sheriff  will  correct  his  return  to  the  Barker  execution 
accordingly. 

An  order  entered  according  to  what  has  been  stated,  no  costs 
allowed  to  any  one  on  this  motion. 


LOYAL  0.  ANDERSON  agt.  STEPHEN  OSBORN. 

Where  a  rule  absolute,  is  obtained  by  defendant  on  notice  for  plaintiff  to  file  se- 
curity for  costs  within  twenty,  days  from  the  entry  of  the  order,  he  must  serve 
a  copy  on  plaintiff's  attorney  in  order  to  put  plaintiff  in  default  for  not  filing 
such  security. 

February  Term,  1845. 

MOTION  by  defendant  for  judgment  of  non  pros,  by  reason 
of  plaintiff 's  failing  to  file  security  for  costs. 

An  order  was  entered  in  this  cause  at  the  last  December 
special  term,  that  the  plaintiff  file  security  for  costs  in  twenty 
days  after  the  entry  of  the  order,  and  that  all  proceeding  on 
the  part  of  the  plaintiff  be  stayed  until  such  security  be  filed. 
This  motion  was  made  on  notice.  The  attorney  for  the  de- 
fendant swears  that  he  has  not  received  any  notice  of  plaintiff's 
filing  such  security,  and  that  plaintiff's  default  for  not  filing 
the  security  according  to  the  order  in  December,  has  been  en- 
tered. Plaintiff  shows  that  no  copy  of  the  order  to  file  secu- 
rity, obtained  in  December,  was  served  until  the  20th  January 
last,  when  the  papers  for  this  motion  were  served,  and 
insists  that  the  *plaintiff  has  twenty  days  to  comply  [*80] 
with  the  order  from  the  time  of  the  service. 

S.  WILKESON,  JR.,  defendants  counsel 
DENNIS  BOWEN,  defendants  attorney. 
LAWRENCE  &  FELLOWS,  plaintiff's  attorneys. 


80  NEW-YORK  PRACTICE  REPORTS. 

Titus  agt.  Kent. 

NELSON,  Chief  Justice.  The  defendant  ought  to  have  served 
a  copy  of  the  order  on  attorney,  in  order  to  put  the  plaintiff  in 
default  for  not  filing  security  for  costs  within  the  twenty  days. 
Let  the  plaintiff  have  twenty  days  to  file  security,  and  no  costs. 

Kule  accordingly. 


In  the  matter  of  the  Attachment  of  PETER  H.  TITUS  et  al  agt 
JOSEPH  A.  KENT  and  others. 

A  non-resident  debtor  may  compel  trustees  to  appoint  referees,  under  and  in  pur- 
suance of  the  19th  and  several  succeeding  sections  of  the  Revised  Statutes, 
(p.  800,  i.,)  in  order  to  contest  the  validity  of  the  debts  presented  and  claimed 
against  him  by  attaching  creditors. 

February  Term,  1845. 

MOTION  on  behalf  of  Joseph  A.  Kent  for  a  mandamus  com- 
manding or  requiring  the  trustees  of  the  estate  of  "Walter  P. 
Clark,  Loomis  Palmer,  Silas  Crane  and  Joseph  A.  Kent,  non- 
resident debtors,  to  appoint  or  nominate  and  have  appointed, 
in  the  manner  prescribed  by  statute,  referees  to  hear  and  de- 
termine the  controversy  which  has  arisen  between  the  said 
Joseph  A.  Kent,  whose  property  has  been  attached,  and  the 
said  trustees  as  to  the  indebtedness  of  the  said  Kent  to  said 
Titus  et  al,  on  whose  behalf  said  attachment  was  issued,  or  his 
liability  for  the  debt  claimed  by  the  said  attaching  creditors,  or 
any  part  thereof. 

It  appears  on  the  part  of  said  Kent,  that  an  attachment  was 
issued  by  F.  P.  Stevens,  Esq.,  a  judge  of  Erie  common  pleas, 
on  or  about  the  29th  day  of  August,  1843,  in  favor  of  Peter 
II.  Titus  and  Wm.  H.  Titus,  of  the  city  of  New- York,  against 
said  Joseph  A.  Kent,  a  non-resident  debtor,  impleaded  with 
Walter  P.  Clark,  Loomis  Palmer  and  Silas  Crane.  That  the 
attachment  was  issued  for  a  claim  or  pretended  claim,  as  sworn 
to  in  the  affidavits  on  which  said  attachments  issued,  of 
$7,482.20,  against  the  defendants  as  partners.  The  sheriff  on 
that  attachment  seized  merchandise  belonging  to  said  Kent 
alone,  at  Buffalo,  on  its  way  to  Michigan,  which  was  appraised 


NEW-YORK  PRACTICE  REPORTS.  80 

Titus  agt.  Kent. 

at  $1,500.  The  said  Kent  denied  that  he  was  ever  a  partner 
of  said  Clark,  Palmer  &  Crane,  or  in  any  way  indebted  to  said 
attaching  creditors,  but  was  unable  to  obtain  security  to 
give  a  bond  to  double  the  amount  of  said  alleged  indebt- 
edness. 

On  the  10th.  July,  1844,  said  judge  ^appointed  three  [*81] 
trustees  in  the  said  matter.  Some  time  between  the 
26th  day  of  July,  and  the  16th  of  August,  1844,  the  said 
judge  made  a  report  of  his  proceedings  and  filed  same.  Said 
Kent  with  an  intention  of  trying  the  question  of  his  liability 
for  the  alleged  demand,  on  the  3d  of  October,  1844,  caused 
notice  to  be  served  upon  the  attorney  for  said  attaching  credit- 
ors, and  upon  each  of  the  trustees,  denying  his  indebtedness 
to  the  attaching  creditors,  either  individually  or  jointly  with 
the  aforesaid  firm,  and  that  he  was  ready  to  appoint  referees, 
either  amicably  or  otherwise,  in  the  mode  pointed  out  by 
statute.  On  the  14th  December,  1844,  the  trustees  declined 
to  appoint  referees,  giving  as  a  reason  that  this  case  was  not 
one  where  the  debtor  had  a  right  to  contest  his  liability  and 
have  it  tried  by  referees.  It  appears  on  the  part  of  the  trustees, 
that  a  few  days  after  the  said  property  was  attached,  the  most 
of  it  was  replevied  from  the  sheriff  by  certain  persons  in  New- 
York  city  other  than  the  said  non-resident  debtors,  who  claim 
to  own  the  same,  and  the  replevin  suits  are  now  in  course  of 
litigation  and  undetermined.  The  creditors  insist  that  the 
non  resident  debtor  cannot  avail  himself  of  the  following  pro- 
vision (1  K  S.  p.  800,  §  19,  2d  ed.) :  "If  any  controversy  shall 
arise  between  the  trustees  and  any  other  person  in  the  settle- 
ment of  any  demands  against  such  debtor  or  of  debts  due  to 
his  estate,  the  same  may  be  referred  to  three  different  persons, 
who  may  be  agreed  upon  by  the  trustees  and  the  party  with 
whom  such  controversy  shall  exist,  by  a  writing  to  that  effect 
signed  by  them,"  because  the  trustees  represent  him  and  all  his 
interests  in  the  matter.  It  applies  to  third  persons,  the  credit- 
ors of  the  non-resident  debtor  "  who  have  a  controversy  with 
the  trustees  in  the  settlement  of  any  demands  against  the 
debtor."  The  object  of  the  motion  is  to  allow  the  debtor  him- 


81  NET^YORK  PRACTICE  REPORTS. 

Goodenow  agt.  Butler. 

self  to  compel  his  trustees  to  refer  it  to  referees  to  see  whether 
he  in  fact  owed  the  debt  to  the  attaching  creditors  on  which 
the  attachment  issued.  It  is  insisted  on  behalf  of  said  Kent 
that  this  court  have  jurisdiction.  And  that  the  trustees  have 
power  to  adjudicate  in  this  matter. 

M.  FILLMORE,  counsel  for  Kent. 

S.  G.  HAVEN,"  attorney  for  Kent. 

W.  H.  GREENE,  counsel  and  attorney  for  attaching  creditor. 

By  the  court,  NELSON,  Chief  Justice.    We  are  all  inclined 
to  think  that  the  statute  is  broad  enough  to  enable  the  non- 
resident debtor  to  contest  the  validity  of  the  debts  presented 
and  claimed  against  him  under  and  in  pursuance  of  the  19th 
and  several  succeeding  sections  of  the  statute  (1  R.  S.p.  800,  t.) 
The  propriety  and  justice  of  such  a  construction,  if  fairly 
within  the  language,  is  manifest.     The  grossest  frauds 
[*82J     and  impositions  might  be  practiced,  unless  an  oppor- 
tunity is,  in  some  way,  afforded  to  contest  pretended 
claims  before  the  trustees.     The  non-resident  debtor  is  most 
deeply  interested  in  the  question.     Mandamus  allowed. 
Kule  accordingly. 


ABRAHAM  GOODENOW  agt.  HORACE  BUTLER  et  al. 

A  stipulation  by  plaintiff  to  try  at  the  next  circuit,  operates  to  compel  a  trial  at 
the  succeeding  circuit,  where  the  cause  was  not  reached  at  the  first  circuit 
after  the  stipulation. 

February  Term,  1845. 

MOTION  by  defendants  for  judgment  as  in  case  of  nonsuit. 

The  plaintiff  had  stipulated  to  try  at  the  next  circuit.  The 
cause  was  duly  noticed  at  the  next  circuit,  but  was  not  reached 
on  the  calendar.  At  the  next  circuit  thereafter  cause  was 
called  and  passed,  and  younger  issues  tried,  defendants  now 
move  on  the  stipulation.  It  is  answered  that  it  applies  only 
to  the  next  circuit  after  it  is  entered  into. 


NEW-YORK  PRACTICE  REPORTS.  81 

Alston  agt.  The  Mechanics'  Mutual  Insurance  Company. 

MATTISON  &  DOOLITTLE,  defendants'  attorneys. 
A.  BIRDSALL,  plaintiff 's  attorney. 

NELSON,  Chief  Justice.  The  true  meaning  of  stipulation  is, 
that  plaintiff  shall  try  his  cause  the  first  opportunity  afforded 
him,  and  it  cannot  be  tried  at  next  circuit  by  reason  of  not 
having  been  reached,  there  is  no  default  to  be  taken  advan- 
tage of,  nor  is  there  complete  fulfilment  of  the  legal  effect  of 
the  stipulation  on  the  part  of  the  plaintiff.  It  should  be  re- 
garded as  operating  to  compel  a  trial  at  the  succeeding  circuit. 
Motion  granted ;  but  with  leave  to  stipulate. 

Kule  accordingly. 


DAVID  ALSTON  agt.  THE  MECHANICS'  MUTUAL  INSURANCE 
COMPANY,  in  the  city  of  Troy. 

A  plaintiff  may  amend  his  process  and  declaration  by  changing  the  form  of  action, 
from  covenant  to  assumpsit,  upon  payment  of  costs  of  opposing  motion  only, 
where  it  appears  the  defendant  did  not  raise  the  objection  until  the  cause  had 
been  through  a  long  course  of  litigation,  and  the  defendants  in  the  first  place 
erroneously  issued  the  instrument  declared  on,  by  not  affixing  their  seal.  The 
terms,  in  these  amendments,  are  always  discretionary  with  the  court— each 
case  depending  upon  its  circumstances. 

February  Tkrm,  1845. 

MOTION  by  plaintiff  for  leave  to  amend  the  summons  and 
declaration  in  this  cause,  by  converting  them  into  a 
summons  and  declaration  in  *assumpsit,  upon  the     [*83] 
same  policy  of  insurance  declared  on  in  this  cause. 

On  the  part  of  plaintiff,  it  appears  this  was  an  action  brought 
upon  a  policy  of  insurance,  as  an  instrument  under  seal ;  the 
same  being  issued  by  the  defendants,  and  delivered  to  the  plain- 
tiff as  a  sealed  instrument.  The  action  was  commenced  in 
January,  1839 ;  the  defendants  pleaded  the  26th  February, 
1839 ;  issue  being  joined,  the  cause  was  noticed  for  trial  1st 
March,  1839,  for  the  circuit  held  on  the  3d  Monday  of  said 
March.  The  circuit  judge,  at  said  circuit,  on  motion  of  plain- 


83  NEW-YORK  PRACTICE  REPORTS. 

Alston  agt.  The  Mechanics'  Mutual  Insurance  Company. 

tiff,  made  an  order  to  refer  said  cause,  which  was  opposed  by 
defendants ;  but  reserving  to  said  defendants  the  right  to  apply 
to  this  court  to  vacate  such  order  of  reference.  In  June,  1839, 
the  defendants  moved  to  vacate  said  order  of  reference,  which 
was  denied  by  this  court;  the  circuit  judge  subsequently  ap- 
pointed referees  in  the  cause.  The  cause  was  tried  before  said 
referees  on  the  15th  November,  1839.  The  referees  reported 
specially  in  favor  of  the  defendants,  and  in  their  report  stated : 
"  The  plaintiff  produced  in  evidence,  a  policy  of  insurance, 
under  the  seal  of  the  defendants,  which  was  admitted  by  the 
defendants'  counsel  to  be  their  deed,  and  was  read  in  evidence 
on  the  part  of  the  plaintiff."  Which  said  policy  so  referred 
to,  is  the  same  policy  upon  which  this  suit  is  brought.  Upon 
said  special  report  of  the  referees,  the  motion  to  set  aside  their 
report  in  favor  of  the  defendants,  was  argued  in  this  court  and 
denied.  Said  decision  appears  in  1st  vol.  of  Hill,  510,  and 
turned  entirely  upon  the  questions  raised  and  argued  upon  the 
reference.  The  cause  was  subsequently  carried  by  the  plain- 
tiff to  the  court  of  errors,  where  the  previous  decision  of  this 
court,  and  the  finding  of  the  referees  in  favor  of  the  defend- 
ants were  set  aside  and  reversed.  The  cause  came  on  again 
for  a  hearing  before  the  referees,  on  the  21st  April,  1843.  On 
said  hearing,  the  plaintiff's  attorney  produced  and  offered  in 
evidence  the  aforesaid  original  policy  of  insurance ;  whereupon 
the  execution  of  the  said  policy  was  again  admitted  by  the 
attorney  and  counsel  for  the  defendants,  without  reservation 
or  qualification ;  and  the  same  read  in  evidence  as  the  deed  of 
defendants,  without  objection,  and  without  any  other  proof 
than  the  admission  aforesaid.  Plaintiff  closed  his  evidence 
and  rested  his  cause  on  the  said  21st  of  April,  1843.  The  de- 
fendants opened  on  the  part  of  the  defence,  and  introduced 
evidence,  when  the  further  hearing  was  adjourned  from  time 
to  time,  until  the  6th  of  May,  1843 ;  on  which  day,  the  de- 
fendants' counsel,  for  the  first  time,  insisted  that  the  said  policy 
was  not  under  seal ;  and  upon  that  ground,  with  others, 
argued  to  the  referees  that  said  plaintiff  could  not  main- 
[*84]  tain  his  *action — the  evidence  was  closed  on  said  6th 


NEW-YORK  PRACTICE  REPORTS.  84 

Alston  agt.  The  Mechanics'  Mutual  Insurance  Company. 

May,  1843.  The  referees  reported  in  favor  of  the  plain- 
tiff. The  defendants  moved  this  court  to  set  aside  said 
report,  which  was  granted,  entirely  on  the  ground  that  said 
policy  was  not  under  seal.  On  the  part  of  the  defendants,  it 
appears,  that  the  plaintiff  commenced  this  suit  by  original 
writ  or  summons  in  covenant.  Defendants  pleaded  to  the  de- 
claration, that  the  policy  of  insurance  upon  which  this  suit 
was  brought,  was  not  the  deed  of  the  defendants.  The  defend- 
ants allege  that  said  policy  of  insurance  was  obtained  from 
defendants  by  a  false  and  fraudulent  representation,  as  to  the 
manner  in  which  the  plaintiff  would  use  and  keep  the  base- 
ment of  the  house,  upon  which  said  policy  was  effected.  The 
defendants'  attorney  on  first  hearing,  mainly  relied  upon  the 
defence  arising  upon  the  merits  out  of  such  false  representa- 
tions, and  principally  directed  his  attention  to  that  point  in 
preparing  for  the  trial ;  and  upon  this  point  this  court  refused 
to  set  aside  the  report  of  the  referees ;  which  decision  and  the 
report  of  the  referees,  was  subsequently  reversed  and  set  aside 
by  the  court  of  errors.  On  the  second  hearing,  defendants 
state,  that  their  attorney  and  counsel  did  not  admit  that  the 
said  policy  was  the  deed  of  the  defendants,  but  on  the  contrary, 
before  the  testimony  in  said  cause  was  closed,  and  before  the 
summing  up  of  the  same,  both  the  attorney  and  counsel  for  de- 
fendants, distinctly  stated  and  claimed  before  said  referees,  that 
under  the  aforesaid  plea  they  should  claim  that  said  policy  was 
not  their  deed,  as  the  defendants  had  pleaded.  The  defendants 
insist  the  plaintiff's  claim  is  unjust  and  unconscionable,  and  if 
allowed  to  mend  his  process  and  pleadings  in  this  cause,  will 
avail  himself  of  a  technical  rule  of  law,  as  established  by  the 
court  of  errors,  to  recover  a  loss,  which  in  the  judgment  of 
said  referees  and  of  this  court,  has  been  occasioned  by  a  breach 
of  good  faith.  The  plaintiff,  on  6th  May,  1843,  if  not  before, 
discovered  his  error ;  this  was  before  the  trial  was  closed,  and 
he  should  then  have  applied  for  leave  to  amend.  But  having 
chose  to  go  on  and  run  the  risk  of  the  legal  question  raised,  he 
cannot  now  call  it  a  mere  inadvertence  or  mistake.  It  was  a 
question  upon  which  he  took  issue  with  the  defendants,  and 


84  NEW-YORK  PRACTICE  REPORTS. 

Alston  agt.  The  Mechanics'  Mutual  Insurance  Company. 

he  should  .not  now  be  permitted  to  shift  the  responsibility  of 
the  result.  Defendants  cited  the  following  cases  in  support  of 
their  position  :  Lynch  agt.  Mechanics'  Sank,  13  J.  R.  127  ;  5 
Wend.  74 ;  1  Chitty's  PI  284 ;  5  J.  R.  402  ;  Green  et  al  agt. 
Milton,  24  Com.  Law  R.  75 ;  4  Barn.  &  Add.  369 ;  6  Taunt.  483 ; 
6  Cow.  668  ;  Miller  agt.  Watson,  6  Wend.  ;  Flowers,  Executors, 

&c.,  agt.  Garr,  20  Wend.  The  plaintiff  insists  the  rule 
[*85]  *to  be  well  established  that  amendments  will  in  all 

cases  be  allowed  to  promote  equity  between  the  par- 
ties ;  and  where  the  matter  really  in  controversy  between  the 
parties  has  been  fully  tried  upon  the  merits,  the  court  uni- 
formly disregard  objections  not  going  to  the  merits,  and  allow 
amendments  without  costs.  That  in  this  case  the  merits  have 
been  tried,  and  found  by  the  referees  in  favor  of  the  plaintiff. 
He  should  be  permitted  to  amend  without  costs,  to  avoid  the 
formal  objection  taken  by  the  defendants.  The  error  in  the 
form  of  action  originated  in  a  mistake  which  was  occasioned 
by  the  fault  of  the  defendants,  and  which  they  have,  by  their 
affidavits  and  admissions  on  the  trial,  and  uniform  conduct 
daring  a  six  years'  litigation,  induced  the  plaintiff  to  over- 
look; and  after  having  been  fairly  beaten  upon  the  merits, 
they  now  seek,  Toy  a  resort  to  this  formal  objection,  to  charge 
the  plaintiff  with  the  costs  which  they  have  occasioned.  Plain- 
tiff cited  the  following  cases ;  2  R.  S.  2d  ed.  343,  344 ;  Aylwin 
agt.  Todd,  27  Com.  Law  ;  Billing  &£,.  Flight,  6  Taunt.  419 ;  Bil- 
ling agt.  Pooley,  6  Taunt.  422;  Avery  agt.  Merwin,  6  Cow. 
366  ;  Burlingame  agt.  Burlingame,  7  Cow.  92  ;  Daley  agt.  At- 
wood,  7  Cow.  483 ;  Borst  agt.  Griffin,  9  W.  309,  311 ;  Carpen- 
ter agt.  Payne,  10  W.  604  ;  Oothout  agt.  Ledings,  15  W.  410 ; 
Weed  agt,  S.  &  S.  R.  R.  Co.,  19  W.  541, 542 ;  Ryers  agt.  Wheekr, 
22  W.  148;  Gillet  agt.  Stanley,  I  Hill,  121 ;  East  Boston  Timber 
Co.  agt.  Perry,  2  Hill,  126. 

M.  T.  EEYNOLDS,  plaintiff' s  counsel 
E.  C.  LITCHFIELD,  plaintiff's  attorney. 
S.  STEVENS,  defendants1  counsel. 
D.  L.  SEYMOUR,  defendants'1  attorney. 


NEW-YORK  PRACTICE  REPORTS.  85 

Alston  agt.  The  Mechanics'  Mutual  Insurance  Company. 

NELSON",  Chief  Justice.  The  cases  referred  to  in  -the  plain- 
tiff's brief  are  full,  to  show  that  he  is  entitled  to  the  amend- 
ment moved  for ;  and  that  upon  payment  of  costs  of  opposing 
motion  only  (see  the  cases  there  referred  to).  The  cases  in 
6  Taunton,  419,  422,  are  very  much  in  point  as  to  the  amend- 
ment; also  in  1  Bing.'  N.  0.  170.  When  deciding  this  case 
on  the  motion  to  set  aside  the  report,  I  felt  that  the  objection 
to  the  form  of  action  was,  under  the  circumstances,  an  ungra- 
cious one,  coming  as  it  did  for  the  first  time  at  that  stage  of  a 
very  prolonged  litigation ;  and  am  glad  to  find  we  have 
authority  for  relieving  the  party  from  the  slip.  Indeed  I  am 
of  opinion  that  the  company  are  mainly  chargeable  with  the 
mistake  :  they  put  forth  the  paper  as  under  their  seal ;  and 
so  all  parties  supposed,  till  late  in  the  litigation,  and  acted  ac- 
cordingly. Motion  granted  on  payment  of  costs  of  opposing 
motion.  After  deciding  this  case,  my  attention  has  been  called 
to  the  case  of  Downer  agt.  Thompson,  since  published 
in  6  Hill,  377 ;  as  conflicting  with  the  decision  in  *this  [*86] 
one,  in  respect  to  the  terms  on  which  the  amendment 
is  allowed.  I  have  submitted  the  point  to  my  brethren,  and 
we  are  all  of  opinion  that  there  is  no  conflict  between  the  two 
cases,  and  that  the  disposition  of  this  one  is  right.  In  Dow- 
ner agt.  Thompson,  the  objection  was  taken  the  first  opportu- 
nity by  the  defendant,  thereby  calling  the  attention  of  the 
plaintiff  to  it  at  once  ;  who,  notwithstanding,  proceeded  with 
the  cause.  Here,  the  cause  proceeded  to  trial,  brought  before 
this  court  upon  other  questions  of  law  raised  by  the  defend- 
ants, carried  to  the  court  for  the  correction  of  errors,  the 
judgment  reversed  with  venire  de  novo  ;  and  then,  on  the  new 
hearing,  the  objection  started  for  the  first  time.  An  objection 
strictly  technical,  going  merely  to  the  form  of  the  action : 
during  the  whole  of  this  protracted  litigation,  all  parties 
assumed,  and  conducted  the  trial  accordingly,  that  the  policy 
was  under  the  seal  of  the  defendants ;  and  I  must  say  I  think 
the  defendants  most  in  fault,  having  put  forth  the  instrument 
as  under  seal  in  the  first  instance.  Of  course,  I  do  not  mean 
to  intimate  there  was  any  intentional  wrong  in  the  case  ;  for 


86  NEW-YORK  PRACTICE  REPORTS. 

Yan  Valkenburgh  agt.  Van  Alen. 

I  have  no  such  belief;  but  the  course  of  the  proceeding  has 
been  such,  that  I  think,  upon  a  fair  and  proper  view  of  it, 
the  defendants  are  not  entitled  to  receive  the  heavy  accumu- 
lation of  costs  that  have  accrued  by  reason  of  their  own 
neglect  in  putting  forth  the  objection.  In  all  these  cases  of 
amendments,  the  terms  are  discretionary,  depending  upon  the 
circumstances  of  each  case. 


CATHARINE  VAN  VALKENBURGH  agt.  ISAAC  P.  VAN  ALEN. 

Subpoena  tickets  made  out  in  good  faith  for  trial  at  circuit,  are  chargeable,  al- 
though not  served,  where  the  cause  by  arrangement  is  referred.  The  act  of 
1844  is  retrospective  in  its  operation  upon  costs  incurred  under  the  act  of 
1840,  if  taxed  since  the  act  of  1844. 

February  Term,  1845. 

MOTION  by  defendant  for  retaxation  of  costs. 

Defendant  objected  on  taxation  to  $1  for  attending  judge 
to  obtain  order  for  bill  of  particulars  ;  one  dollar,  for  appear- 
ing on  the  day  to  show  cause ;  twelve  subpoena  tickets,  $3, 
upon  the  ground  that  said  tickets  had  not  been  served,  and 
because  the  attorneys  for  the  respective  parties  mutually 
agreed  to  refer  said  cause  on  the  morning  of  the  first  day 
of  the  circuit,  and  the  same  was  referred  by  the  circuit  judge. 
$2.00,  for  counsel  perusing  and  amending  declaration  :  first, 
because  there  was  no  certificate  of  counsel  produced,  showing 
that  the  service  had  been  performed,  and  said  declaration  was 
special ;  second,  because  it  was  not  a  taxable  item  under  the 
fee  bill  of  1840,  under  which  the  costs  in  this  cause 
[*87J  must  be  taxed,  *as  the  suit  was  commenced  before 
the  amendments  of  1844,  and  before  said  fee  bill  went 
into  operation :  and,  third,  that  said  declaration  contained 
only  the  common  counts.  And  $3  for  counsel  attending 
court  to  try,  because  the  cause  was  referred  before  trial,  and 
that  no  such  fee  was  allowable  under  the  act  of  1840,  the  suit 
having  been  commenced  before  the  act  of  1844. 


NEW-YORK  PRACTICE  REPORTS.  87 

Maher  agt.  Comstock. 

J.  KOON,  defendant's  counsel.  , 

C.  P.  ScHERMERHORN,  defendant's  attorney. 
M.  T.  KEYNOLDS,  plaintiff's  counsel. 
W.  H.  TOBEY,  plaintiff's  attorney. 

NELSON,  Chief  Justice.  The  charge  of  $1.00  for  attending 
judge  to  obtain  order  for  bill  of  particulars  is  not  taxable. 
The  charge  of  $1.00  for  appearing  on  the  day  to  show  cause, 
is  taxable.  If  subpoena  tickets  are  actually  made  in  good 
faith  for  the  circuit  and  the  cause  is  subsequently  disposed  of 
by  arrangement  between  the  attorneys  to  refer  the  same,  the 
charge  for  the  tickets  is  taxable,  although  not  served.  The 
charge  for  the  subpoena  tickets  $3.00  is  therefore  allowed. 
The  charge  for  perusing  and  amending  declaration,  and  coun- 
sel attending  prepared  to  try,  are  allowable,  if  actually  ren- 
dered, although  the  suit  were  commenced  prior  to  the  act  of 
1844,  if  the  costs  were  not  taxed  until  after  that  act  went  into 
operation,  which  is  the  fact  in  this  case. 

Kule  accordingly. 


JAMES  MAHER  agt.  ALLEN  COMSTOCK  and  PETER  COMSTOCK. 

A  plea  served  by  mail,  on  the  last  day  for  pleading,  after  the  close  and  departure 
of  the  mail  for  its  place  of  destination,  the  time  of  such  departure  being  well 
known  to  the  party  serving,  hdd  bad. 

February  Term,  1845. 

MOTION  by  defendants  to  set  aside  default  of  Allen  Com- 
stock and  all  subsequent  proceedings  for  irregularity. 

It  appears  on  the  part  of  defendants  that  the  declaration  was 
served  19th  November  last,  on  defendant  A.  Comstock.  On 
the  9th  December  following  and  before  six  o'clock  P.  M.,  de- 
fendants' attorneys  served  on  plaintiff's  attorneys  plea  and 
notice,  by  inclosing  same,  together  with  another  plea,  in  a 
wrapper,  addressed  to  plaintiff's  attorneys  at  Albany,  and 
putting  same  in  post-office  at  Troy,  and  paying  the  postage 

VOL.  I.  9 


87  NEW-YORK  PRACTICE  REPORTS. 

Maher  agt.  Comstock. 

(eighteen  and  three-quarter  cents)  thereon.  On  the  llth 
December,  defendants'  attorneys  were  informed  by  plaintiff 's 
attorneys  that  A.  Comstock's  default  was  entered  on  the  10th 
December,  which  defendants'  attorneys  on  examination  found 
to  be  the  fact.  On  the  part  of  plaintiff  it  appears  that  the 

declaration  was  served  on  A.  Comstock  on  the  18th 
[*88]  November  last.  On  the  morning  of  the  10th  *Decem- 

ber  last,  no  plea  having  been  received,  his  default  was 
entered  and  judgment  perfected.  On  the  morning  of  the  llth 
December  plaintiff's  attorneys  received  from  the  post-office  a 
package  from  defendants'  attorneys,  postmarked  at  Troy, 
December  10th,  containing  a  plea  in  this  and  another  cause, 
with  affidavits  and  notices  of  set-off.  On  the  said  llth  De- 
cember, plaintiff's  attorneys  advised  defendants'  attorneys  of 
the  receipt  of  the  plea,  &c.,  and  objected  that  it  was  served  too 
late.  Plaintiff's  attorneys  show  that  a  daily  mail  from  Troy 
to  Albany  closes  at  Troy  at  four  o'clock  P.  M.,  and  departs 
at  five  o'clock  P.  M. ;  that  a  letter  deposited  in  the  post-office 
at  Troy,  after  the  closing  of  said  mail,  would  not  leave  the 
city  of  Troy  until  five  o'clock  in  the  afternoon  of  the  succeed- 
ing day.  Also  that  the  hour  of  closing  said  mail  and  its  de- 
parture for  Albany  is  publicly  known  to  all  business  men  in 
Troy. 

E.  CLARK,  defendants'  counsel. 

CLARK  &  PATTISON,  defendants'  attorneys. 

P.  CAGGER,  plaintiff's  counsel. 

CAGGER  &  STEVENS,  plaintiff's  attorneys. 

NELSON,  Chief  Justice.  The  service  of  the  plea  must  be 
held  bad,  being  served  on  the  last  day  after  the  hour  for 
closing  the  mail.  The  default  being  regular,  defendants  must 
come  in,  if  at  all,  on  terms. 

Decision. — That  on  payment  of  costs  of  default  and  sub- 
sequent proceedings,  and  costs  of  opposing  motion,  the  cause 
be  referred.  Judgment  and  execution  to  stand  as  security. 


NEW-YORK  PRACTICE  REPORTS.  88 

Butts  agt.  Campbell. 


SAMUEL  L.  BUTTS  agt.  MAJOR  A.  CAMPBELL. 

Where  the  plaintiff  noticed  his  cause  for  trial,  on  information  that  the  certiorari 
had  been  returned  and  filed,  which  was  brought  by  defendant,  and  it  appeared 
it  had  not  been  filed,  through  neglect  of  defendant.  Motion  for  judgment  as 
in  case  of  nonsuit  was  denied  with  costs. 


February  Term,  1845. 

MOTION  by  defendant  for  judgment  as  in  case  of  nonsuit. 

It  appears  on  the  part  of  defendant  that  the  action  in  this 
cause  was  commenced  in  the  Erie  common  pleas,  and  after 
issue  joined,  the  defendant  brought  a  certiorari  to  remove  the 
same  into  this  court.  On  the  4th  November  last,  plaintiff's 
attorney  noticed  the  cause  for  trial  at  the  circuit  held  on  the 
third  Tuesday  of  November  last.  Defendant  prepared  for 
trial,  the  cause  was  not  brought  on  to  trial  by  plaintiff,  and 
younger  issues  were  tried.  It  appears  on  the  part  of  plaintiff 
that  his  attorney  resides  about  twenty  miles  from  Buffalo,  and 
that  when  the  attorney  sent  a  notice  of  trial  in  the  cause  to  his 
agent  at  Buffalo,  on  the  4th  November  last,  he  requested  said 
agent  to  ascertain,  before  serving  said  notice  of  trial 
on  defendant's  ^attorney,  if  the  certiorari  and  return  [*89] 
had  been  filed  in  this  cause :  if  it  had,  to  serve  the 
notice ;  he  afterwards  received  an  answer  from  his  agent  that 
the  return  was  made  and  that  he  had  served  the  notice  of  trial. 
On  the  17th  November  he  received  a  letter  from  the  clerk  of 
Erie  county  that  the  return  had  not  been  filed.  It  further  ap- 
pears on  the  part  of  plaintiff  that  the  county  clerk  had 
informed  defendant's  attorney  previous  to  and  on  the  th 
November  last,  that  said  certiorari  and  return  were  ready  to 
be  filed,  and  that  he  would  file  them  as  soon  as  the  fees  and 
postages  were  paid ;  that  defendant's  attorney  never  had  paid 
or  offered  to  pay  the  same. 

C.  H.  BRAMHALL,  defendants  counsel. 
ELI  COOK,  defendants  attorney. 


89  NEW-YORK  PRACTICE  REPORTS. 

Birdsall  agt.  Taylor. 

M.  FILLMORE,  plaintiffs  counsel. 
I.  E.  IRISH,  plaintiff's  attorney. 

BEARDSLEY,  Justice.     The  motion  must  be  denied  with 
costs.     Eule  accordingly. 


AUSBURN  BIRDSALL,  Assignee,  &c.  agt.  NATHAN  TAYLOR 

et  al. 

Where  service  of  papers  is  made  by  mail,  no  part  of  the  writing,  composing  any 
part  of  the  papers  served,  must  be  written  on  the  wrapper. 

February  Term,  1845. 

MOTION  by  the  defendants  to  set  aside  the  proceedings  in 
this  cause. 

The  plaintiff  showed  that  the  papers  for  this  motion  were 
not  duly  served  according  to  the  101st  rule  of  this'court ;  be- 
cause they  were  not  inclosed  in  a  wrapper ;  that  the  copy  or- 
der staying  proceedings,  and  the  notice  of  motion  are  written 
upon  the  inside  of  the  outside  covering  of  the  letter  or  pack- 
age containing  the  affidavit.  So  that  upon  the  inside  of  said 
covering,  appears  the  copy  order  and  notice  of  motion,  and 
upon  the  outside,  the  direction  and  postmarks. 

S.  P.  NASH,   defendants'  counsel. 
H.  BENNETT,  defendants1  attorney. 
P.  CAGGER,  plaintiff'1  s  counsel. 
A.  BIRDSALL,  plaintiff's  attorney. 

NELSON,  Chief  Justice.  The  service  does  not  appear  to  come 
within  the  rule. 

Decision. — Motion  denied  with  costs,  without  prejudice. 


NEW-YORK  PRACTICE  REPORTS.  89 

Robinson  agt.  Merritt. 


HENRY  HERRING  agt.  MATTHIAS  A.  HALLENBECK  et  al. 

It  is  not  necessary  to  move  the  court  for  a  precept  to  collect  the  amount  of  costs, 
which  are  given  for  appearing  prepared  to  oppose  a  motion,  which  is  not  made 
pursuant  to  notice.  The  precept  issues  under  the  statute. 

February  Term,  1845. 

MOTION  by  plaintiff  ex  parte,  at  the  last  December 
special  term,  for  *leave  to  issue  a  precept  to  collect     [*90] 
costs  of  a  motion. 

Defendant's  attorney  served  affidavits  and  notice  of  motion 
to  change  the  venue  in  thjs  cause,  for  the  September  special 
term,  but  failed  to  make  the  motion ;  and  on  the  last  day  of 
the  term,  plaintiff  took  a  rule  for  seven  dollars  costs,  for  pre- 
paring and  appearing  to  oppose  the  motion,  not  made  pursu- 
ant to  notice.  No  copy  of  the  rule  has  been  served  on  defend- 
ant, or  demand  made  for  payment  of  costs.  And  plaintiff 
asked  leave  at  this  term,  to  issue  a  precept. 

C.  STEVENS,  plaintiffs  counsel. 
H.  L.  PALMER,  plaintiff's  attorney. 

BRONSON,  Justice.  It  is  not  necessary  to  make  a  motion  for 
a  precept ;  it  issues  under  the  statute  as  in  the  ordinary  way, 
where  a  motion  is  denied  with  seven  dollars  costs. 


JOSEPH  KOBINSON  agt.  WILLIAM  W.  MCCLELLAN  and  ED- 
WARD MERRITT. 

Where  a  party  changes  his  attorney  in  the  course  of  the  progress  of  a  suit,  substi- 
tution of  attorneys  must  be  duly  entered,  and  notice  thereof  given  to  the  op- 
posing attorney,  otherwise  the  attorney  substituted  cannot  legally  move  in  the 
cause. 

February  Term,  1845. 

MOTION  by  defendants  for  judgment  as  in  case  of  nonsuit 


90  NEW-YORK  PRACTICE  REPORTS. 

The  People  agt.  The  Mayor,  &c.,  of  New- York. 

It  appears  oil  the  part  of  plaintiff,  that  defendants  appeared 
and  pleaded  separately,  by  the  defendant  McClellan,  who  is  an 
attorney  of  this  court ;  that  the  notice  for  this  motion  is  signed 
by  George  Case,  as  attorney  for  both  defendants.  That  plain- 
tiff's attorney  has  never  received  any  notice  of  substitution  of 
attorneys  for  defendants,  iu  the  place  of  McClellan ;  and  be- 
lieves no  rule  of  substitution  has  been  entered. 

J.  L.  TILLINGHAST,  defendants'  counsel. 
GEO.  CASE,  defendants'1  attorney. 
P.  CAGGER,  plaintiff's  counsel. 
J.  W.  MILLS,  plaintiff's  attorney. 

NELSON,  Chief  Justice.  Held  that  substitution  of  defend- 
ants' attorney  should  have  been  duly  entered,  and  notice  there- 
of served  on  plaintiff's  attorney,  before  making  motion. 

Decision. — Motion  denied  with  costs. 


THE  PEOPLE  ex  rel.  ANDREW  SMITH  et  al.  agt.  THE  MAY- 
OR, ALDERMEN,  &c.,  OF  THE  CITY  OF  NEW-YORK. 

An  application  for  leave  to  make  up  a  record,  with  a  view  to  remove  the  cause  to 
the  court  of  errors ;  upon  a  decision  of  this  court  quashing  a  certiorari  for  er- 
rors appearing  upon  the  face  of  the  writ,  and  not  upon  the  merits,  will  not  be 
allowed. 

February  Term,  1815. 

MOTION  by  plaintiffs,  that  the  plaintiffs  have  leave 
[*91]    to  make  up  and  file  a  *record  of  the  judgment  of  this 
court  on  the  certiorari  in  this  cause. 

It  appears  on  the  part  of  plaintiffs,  that  the  writ  of  certio- 
rari in  this  cause  was  quashed  by  this  court,  by  a  rule  of  6 
January,  1844.  That  the  plaintiffs  are  desirous,  and  have 
been  advised  to  bring  a  writ  of  error  to  this  court,  to  remove 
the  cause  to  the  court  of  errors;  that  no  record  has  been 
made  up  and  filed.  On  the  part  of  the  defendants,  it  appears, 


NEW-YORK  PRACTICE  REPORTS.  91 

Sherman  agt.  Chittenden. 

that  the  certiorari  in  this  cause  was  allowed  for  the  purpose 
of  bringing  before  this  court  an  assessment,  relative  to  the 
extension  of  a  sewer,  in  the  Sixth  Avenue,  in  the  city  of  New- 
York,  that  although  a  return  had  been  filed  to  said  certiorari 
previous  to  the  said  motion,  such  return  was  not  before  the 
court  on  the  argument  of  the  said  motion,  nor  considered  in 
the  decision  thereof;  that  the  return  has  never  been  before 
the  court  on  argument  in  any  shape.  That  the  motion  was 
founded  solely  on  the  face  of  the  certiorari  itself,  and  of  the 
affidavit  of  the  relators,  upon  which  it  had  been  allowed. 
And  the  grounds  urged  for  quashing  the  writ,  were,  that  it 
would  not  lie  to  review  proceedings  of  such  a  character  as  an 
assessment  for  a  sewer ;  not  being  judicial  in  their  nature ; 
and  alleged  it  had  been  improvidently  allowed. 

J.  RHOADES,  counsel  for  relators. 
S.  B.  H.  JUDAH,  relators'  attorney. 
P.  C  AGGER,  counsel  for  defendants. 
R.  EMMET,  defendants'  attorney. 

NELSON,  Chief  Justice.  Held  that  the  proceedings  could 
not  be  reviewed  by  writ  of  error,  the  certiorari  being  quashed 
upon  error  appearing  upon  the  face  of  the  writ,  and  not 
upon  the  merits  which  the  return  was  intended  to  bring  before 
the  court ;  there  was  nothing  to  be  brought  up  on  a  record. 


WILLIAM  L.  SHERMAN  agt.  VIRGIL  CHITTENDEN. 

A  motion  to  set  aside  an  inquisition  taken  before  a  sheriff's  jury,  on  the  ground 
that  improper  evidence  was  admitted,  cannot  be  made  at  special  torm.  It  is 
a  calendar  cause. 

February  Term,  1845. 

MOTION  by  plaintiff  to  set  aside  the  inquisition  executed  in 
this  cause,  on  the  ground  of  irregularity  in  the  admission  of 
improper  evidence ;  and  also  that  the  plaintiff  be  permitted 


91 


NEW-YORK  PRACTICE  REPORTS. 


Gregory  agt.  Travis. 


to  issue  a  new  writ  of  inquiry,  to  be  executed,  and  the  dam- 
ages assessed  before  the  circuit  judge  at  the  circuit. 

It  appears  this  is  an  action  brought  for  libel ;  that  an  in- 
quisition was  taken  before  a  sheriff's  jury ;  the  defendant  per- 
mitting a  default  to  be  taken  against  him  for  not  pleading. 
On  the  execution  of  the  writ  of  inquiry  before  the  deputy 

sheriff,  it  appears  witnesses  were  examined  for  both 
[*92]     *parties,  and  the  testimony  given  at  length  in  the 

papers  for  this  motion.     The  plaintiff  alleging  that 
improper  evidence  was  admitted  by  the  deputy  sheriff. 

M.  T.  REYNOLDS,  plaintiff's  counsel. 
WM.  L.  SHERMAN,  attorney  in  pro.  per. 
A.  TABER,  defendant's  counsel. 
SKINNER  &  ROGERS,  defendant's  attorneys. 

NELSON,  Chief  Justice.     Held  that  this  is  a  calendar  cause, 
and  cannot  be  decided  on  motion  at  special  term. 
Motion  denied,  with  costs,  without  prejudice. 


LYMAN  GREGORY  agt.  JOHN  TRAVIS. 

MARIA  L.  GREGORY,  by  her  next  friend  LYMAN  GREGORY 
agt.  JOHN  TRAVIS. 

On  motions  for  judgment  as  in  case  of  nonsuit  in  two  causes  between  the  same 
parties,  and  being  alike  in  all  respects ;  defendant  is  entitled  to  costs  of  each 
motion  on  a  tender  of  stipulation  to  try: 

February  Term,  1845. 

MOTION  by  defendant  for  judgment  as  in  case  of  nonsuit, 
in  each  cause,  with  costs. 

The  motions  in  these  causes  were  made  upon  affidavits, 
showing  that  the  issues  were  joined  in  September  last,  and 
that  the  plaintiff  did  not  notice  the  same  for  trial  at  the  last 
January  circuit,  in  the  county  where  the  venue  in  each  is 
laid.  The  plaintiff  shows  that  he  did  not  bring  the  same  to 


NEW-YORK  PRACTICE  REPORTS.  92 

Archer  agt.  Douglass. 

trial,  for  the  reason  that  an  important  witness  was  absent, 
without  whose  testimony  he  could  not  safely  proceed  to  trial ; 
that  when  he  received  the  papers  for  the  motions  in  these 
causes,  he  served  on  defendant's  attorney  a  stipulation  to  try 
at  the  next  circuit,  and  offered  to  pay  the  actual  costs  made, 
up  to  the  time  of  tendering  the  stipulation.  Defendant's  at- 
torney required  ten  dollars  costs  in  each  cause  for  preparing 
to  make  the  motions,  which  plaintiff's  attorney  refused  to  pay. 
It  was  insisted  by  plaintiff's  counsel  that  both  causes  were 
really  between  the  same  parties,  and  alike  in  all  respects ;  and 
that  plaintiff  ought  to  pay  the  costs  of  only  one  motion. 

BEARDSLEY,  Justice.    Held  that  defendant  was  entitled  to 
costs  of  motion  in  each  case. 

Decision. — Motion  granted  unless  plaintiff  stipulate  and  pay 
costs,  and  the  costs  of  the  motion  in  each  suit. 


*MICHAEL  ARCHER  agt.  JAMES  B.  DOUGLASS  et  dl.     [*93] 

On  a  motion  by  defendant  for  leave  to  plead  a  release  under  seal  in  full,  in  bar 
of  the  action  of  plaintiff  after  the  cause  has  been  noticed  for  trial  at  three  cir- 
cuits, and  it  appears  the  defence  sought  to  be  interposed  by  such  release  is 
merely  technical ;  it  will  be  denied  with  costs. 

February  Term,  1845. 

MOTION  by  defendants  for  leave  to  amend  the  plea  of  said 
defendants,  interposed  in  this  cause,  by  pleading  a  release 
(executed  by  plaintiff  to  the  defendant  Douglass),  in  bar  of  the 
action. 

It  appears  on  the  part  of  defendant  Douglass,  that  he  has  a 
full  release  under  seal  from  plaintiff  for  the  demand  in  this 
suit,  which  was  executed  in  June,  1842  ;  it  was  in  his  posses- 
sion until  a  few  days  before  the  October  circuit,  1844,  at 
which  this  cause  was  to  be  tried,  when  he  inclosed  it  to  his 
attorneys  at  Albany,  to  produce  and  prove  on  the  trial.  The 
attorneys  for  defendants  were  ignorant  of  such  release  until 


93  NEW- YORK  PRACTICE  REPORTS. 

Archer  agt.  Douglass. 

they  received  it  from  defendant.  They  had  pleaded  to  the 
action  (which  was  debt  on  bond)  the  general  issue,  and  given 
notice  of  special  matter.  They  now  move  to  be  permitted  to 
plead  the  release  in  bar  of  the  action  as  to  defendant  Douglass. 
Plaintiff  shows  that  this  action  is  brought  on  a  bond  of  indem- 
nity, given  by  defendants  to  plaintiff,  as  sheriff  of  Albany,  for 
levying  on  certain  goods.  In  a  former  suit  against  plaintiff, 
and  a  partner  of  one  of  the  present  defendants,  for  levying  on 
said  goods,  the  release  mentioned  by  defendant  Douglass  at 
the  request  of  said  partner,  was  executed  on  the  trial,  for  the 
purpose  of  using  Douglass  as  a  witness  ;  and  he  was  accord- 
ingly used  as  a  witness  on  that  trial,  which  resulted  in  a  ver- 
dict and  judgment  against  plaintiff  and  the  other  defendant, 
whose  name  is  Van  Yliet.  Plaintiff  has  since  settled  the  same. 
The  issue  was  joined  in  this  cause  in  November,  1843,  and 
has  been  noticed  at  three  different  circuits  for  trial,  and  put 
over  each  time  by  defendants.  Plaintiff  also  shows  that  de- 
fendant Douglass  was  not  at  the  time  of  executing  the  release 
by  plaintiff,  to  him  as  aforesaid,  a  person  of  any  pecuniary  re- 
sponsibility ;  and  is  not  at  the  present  time. 

I.  HARRIS,  defendants'  counsel. 
HARRIS  &  SHEPARD,  defendants'  attorneys. 
S.  STEVENS,  plaintiff's  counsel. 
CAGGER  &  STEVENS,  plaintiff's  attorneys. 

NELSON,  Chief  Justice.  Held  that  the  defence  was  merely 
technical,  and  after  such  a  lapse  of  time  he  should  refuse  to 
let  in  the  amended  plea. 

Decision. — Motion  denied  with  costs  of  opposing  motion, 
and  of  the  last  circuit. 


NEW-YORK  PRACTICE  REPORTS.  94 

Payn  agt.  Parks. 


*AMAZIAH  PAYN  agt.  TABER  PARKS.  [*94] 

A  landlord  has  a  right  to  defend  in  the  name  of  the  tenant  in  an  action  of  eject- 
ment. A  settlement  by  the  tenant  with  the  plaintiff,  without  the  consent  of 
the  landlord  or  his  attorney,  stipulating  to  discontinue  the  suit  without  costs, 
operates  as  a  fraud  upon  defendant's  attorney ;  where  it  appears  the  tenant 
has  never  acted  at  all  in  the  suit ;  the  defence  being  carried  on  altogether  by 
the  landlord.  The  papers  showing  the  tenant  and  landlord  to  be  insolvent. 

February  Term,  1845. 

MOTION  by  defendant  to  set  aside  a  rule  entered  in  common 
rule  book,  discontinuing  this  suit  without  costs. 

It  appears  from  defendant's  papers,  this  is  an  action  of  eject- 
ment, that  the  defendant  was  a  tenant  for  one  year  of  the 
premises ;  the  landlord,  William  Forkson,  received  the  decla- 
ration from  defendant  immediately  after  the  service  on  defend- 
ant, and  employed  counsel  to  defend,  and  was  considered  and 
treated  as  the  real  defendant  in  the  cause;  the  defendant 
Parks  never  having  anything  to  do  with  the  suit,  and  left  the 
premises  after  one  year's  occupation ;  the  declaration  was 
served  in  the  year  1839.  Plaintiff  being  a  non-resident,  was 
required  to  file  security  for  costs ;  that  two  other  suits  were 
commenced  the  same  time  against  one  Simmons  and  one  Beal 
by  the  same  plaintiff,  being  actions  of  ejectment,  and  all  three 
suits  brought  for  the  recovery  of  the  same  piece  of  land.  The 
same  attorney  was  employed  to  defend  said  actions,  by  said 
Forkson,  as  landlord  for  the  three  tenants  named,  who  were 
made  defendants ;  and  that  the  three  suits,  together  with  two 
others  brought  by  said  plaintiff  against  said  Forkson,  for  the 
same  and  other  premises,  were  all  carried  on  together.  At 
the  last  April  circuit,  the  cause  against  Beal  was  tried,  and 
plaintiff  nonsuited.  Plaintiff  then  refused  to  try  the  other 
two.  A  bill  of  exceptions  was  made  and  settled  in  the  cause 
tried,  and  was  noticed  for  argument  at  the  last  July  and  Oc- 
tober terms.  Shortly  before  the  January  term  last,  defend- 
ant's attorney  was  served  with  a  copy  rule  discontinuing  this 
cause  (and  the  two  others  against  Simmons  and  Beal),  without 


94  NEW-YORK  PRACTICE  REPORTS. 

Payn  agt.  Parks. 

costs.  Defendant  shows  that  a  stipulation  was  signed  by  the 
defendant  Parks  at  the  instigation  of  one  Smith  Griffith,  the 
surety  of  plaintiff  for  costs,  some  time  last  December,  on 
Griffith  giving  him  a  bond  of  indemnity,  which  was  the  first 
act  the  defendant  Parks  had  ever  undertaken  to  do  about  the 
suit.  Defendant's  attorney  had  before  cautioned  said  defend- 
ant Parks  not  to  meddle  in  any  manner  in  this  suit.  At  the 
June  special  term  last,  defendant  made  a  motion  in  this  cause 
for  judgment  as  in  case  of  nonsuit,  for  not  trying  at  the  April 
circuit.  A  rule  was  granted  by  the  court  directing  this  cause 
to  abide  the  event  of  the  suit  of  Payn  agt.  Beal,  and  that 
plaintiff  should  pay  the  costs  of  circuit  and  of  motion  ; 
[*95]  a  *copy  of  which  rule  was  served  on  plaintiff's  attor- 
ney. The  defendant's  counsel  insisted  that  the  effect 
of  such  rule  to  discontinue  without  costs  would  be  to  deprive 
defendant's  attorney  of  his  costs  in  the  suit,  as  defendant 
Parks  was  irresponsible. 

Plaintiff  shows  that  a  mortgage  was  executed  by  one  Has- 
kin  and  wife,  and  said  William  Forkson  and  his  wife,  to  one 
Miles  Beach,  in  the  year  1836,  of  about  two  hundred  acres  of 
land,  commonly  called  the  Payn  farm  (formerly  owned  by 
said  plaintiff) ;  and  including  the  premises  for  which  this  ac- 
tion was  brought.  Subsequently  Smith  Griffith  became  the 
assigneee  of  said  mortgage  and  accompanying  bond,  and  in 
September,  1844,  he  sold  said  mortgaged  premises,  which 
were  bid  off  and  purchased  by  said  Griffith.  That  said  Grif- 
fith represented  these  facts  to  said  defendant  Parks,  and  pro- 
cured the  stipulation  above  mentioned,  to  discontinue  this  suit 
without  costs.  Plaintiff  also  shows  that  said  Forkson  is 
wholly  and  utterly  insolvent ;  and  that  defendant  Parks  had 
stated  to  said  Griffith  he  had  never  authorized  or  employed 
any  person  to  appear  or  defend  for  him  in  this  suit.  Plaintiff's 
counsel  insisted  that  Forkson  could  not  defend  in  the  name 
of  the  tenant  and  have  control  of  the  suit. 

S.  STEVENS,  defendants  counsel. 
J.  KOON,  defendant's  attorney. 


NEW-YORK  PRACTICE  REPORTS.  95 

Merritt  agt.  Seacord. 

D.  CADY,  plaintiff's  counsel. 

S.  G.  HUNTINGTON,  plaintiff's  attorney. 

NELSON,  Chief  Justice.  Held,  that  Forkson  had  a  right  to 
defend  in  the  name  of  the  tenant,  and  that  the  settlement  with 
the  tenant  operated  as  a  fraud  upon  the  attorney. 

Decision. — Motion  granted  with  costs. 

The  same  decision  in  the  cases  of  Payn  agt.  Simmons,  and 
Payn  agt.  Beat. 


EDWARD  MERRITT  agt.  JAMES  SEACORD. 

A  parol  settlement  of  a  suit  between  the  parties,  held  good,  to  defeat  a  motion 
for  judgment  as  in  case  of  nonsuit. 

February  Term,  1845. 

MOTION  by  defendant  for  judgment  as  in  case  of  nonsuit. 

This  is  an  action  of  ejectment ;  issue  joined  May,  1842. 
The  cause  has  never  been  noticed  for  trial.  A  circuit  court 
was  held  in  November  last,  in  "Westchester  county,  where  the 
venue  is  laid ;  and  younger  issues  at  said  circuit  were  tried. 
Defendant's  attorney  states  that  the  cause  has  never  been  set- 
tled or  arranged  in  any  manner  to  his  knowledge  or  belief, 
between  the  parties ;  and  that  he  has  never  consented  to  any 
settlement  or  arrangement  of  said  cause,  as  attorney 
for  the  defendant.  On  the  part  *of  the  plaintiff  it  ap-  [*96] 
pears  that  this  suit,  together  with  all  other  matters  in 
difference  between  the  plaintiff  and  defendant,  were  submitted 
by  agreement  to  one  Tonlice  and  Purdy  for  settlement,  and 
Tonlice  and  Purdy  agreed  how  the  parties  ought  to  settle  ; 
and  named  to  them  the  terms,  to  which  they  agreed ;  the 
plaintiff  then  stated  that  this  suit  was  abandoned ;  this  was 
in  the  fall  of  1842.  It  appears  the  settlement  aforesaid  be- 
tween the  parties  was  all  done  by  parol.  And  the  defendant's 


96  NEW-YORK  PRACTICE  REPORTS. 

Hunter  agt.  Schuyler 

counsel  insisted  that  a  parol  settlement  or  agreement  to  settle 
was  not  binding. 

J.  W.  TOMPKINS,  defendants  attorney. 
M.  MITCHELL,  plaintiff's  attorney. 

NELSON,  Chief  Justice.  Held  the  settlement  good,  and 
denied  the  motion  with  costs,  and  ordered  the  suit  to  be 
discontinued. 

Eule  accordingly. 


DAVID  HUNTER  agt.  CORNELIUS  SCHUYLER,  late  Sheriff. 

A  motion  for  a  perpetual  stay  of  execution,  or  to  permit  .the  defendant  to  come 
in  and  plead  his  bankrupt  discharge  is  a  matter  of  discretion  with  the  court. 

February  Term,  1845. 

MOTION  by  defendant  for  a  perpetual  stay  of  execution 
upon  the  judgment  in  this  cause,  or  that  the  verdict  and  judg- 
ment be  opened  and  the  defendant  be  permitted  to  plead  his 
discharge  (in  bankruptcy)  and  certificate  of  discharge,  puis 
darien  continuance,  on  such  terms  as  the  court  shall  deem 
proper. 

It  appears  that  this  suit  was  commenced  in  August,  1842, 
against  the  defendant  for  money  received  by  him  as  sheriff, 
for  the  redemption  of  property,  which  plaintiff  had  previously 
purchased  at  sheriff's  sale.  The  cause  was  tried  at  the  circuit 
in  Albany  county,  in  January,  1843  ;  and  the  only  question 
on  the  trial  was,  whether  the  defendant  was  liable  in  his  offi- 
cial capacity,  or  individually  ;  the  declaration  was  against  the 
defendant  as  late  sheriff  of  the  county  of  Kensselaer.  On  the 
trial  the  defendant  produced  a  receipt  from  plaintiff,  which 
went  to  prove  that  plaintiff  had  loaned  defendant  the  money, 
which  he  claimed.  The  jury  found  a  verdict  for  plaintiff  for 
the  whole  amount  claimed,  being  over  $1,100.  The  defend- 
ant brought  the  cause  before  this  court  for  the  purpose  of  ob- 
taining their  decision  on  the  question,  whether  he  was  offi- 


NEW-YORK  PRACTICE  REPORTS.  96 

Campbell  agt.  Spencer. 

cially  or  individually  liable.     This  court  denied  the  motion 
for  a  new  trial,  on  the  ground  that  the  defendant  was  liable 
individually  and   not  officially;    that   the   declaration   was 
merely  descriptive  of  the  person.     The  defendant  now 
moves  for  a  perpetual  stay  of  execution  *on  the  judg-     [*97] 
ment,  &c.,  as  he  shows,  on  the  7th  November,  1842, 
he  presented  his  petition  for  a  discharge  ;  that  among  the  list 
of  debts  made  out  as  owing  by  him,  the  claim  for  which  the 
plaintiff  was  then  prosecuting  him  for,  was  mentioned  as  one. 
On  the  10th  of  April,  1843,  defendant  received  his  discharge. 

A.  TABER,  defendants  counsel. 

HAYNER  &  JOHNSON,  defendants  attorneys. 

D.  WRIGHT,  plaintiff's  counsel. 

H.  C.  WHELPLEY,  plaintiff"1  s  attorney. 

NELSON,  Chief  Justice.  The  circumstances  are  very  strong 
against  the  defendant ;  he  received  the  money  as  a  public 
officer,  and  is  not  entitled  to  any  equity  from  the  court.  It  is 
a  matter  of  discretion  with  the  court  entirely ;  andt  aking  all 
the  circumstances  of  this  case  into  consideration,  the  motion 
must  be  denied  with  costs. 

Kule  accordingly. 


DRYDEN  H.  CAMPBELL  agt.  ELIZA  SPENCER. 

When  service  of  papers  is  made  by  leaving  them  in  a  conspicuous  place  in  the 
office,  the  affidavit  must  state,  that  there  was  no  person  in  the  office  at  the  time. 

% 

February  Term,  1845. 

MOTION  by  defendant  to  vacate  a  stipulation  referring  this 
cause. 

This  motion  was  denied  on  the  ground  of  defective  service 
of  the  papers  for  the  motion.  The  affidavit  of  service  reads 
as  follows:  "being  duly  sworn,  says,  that  on  the  27th  day  of 
January  instant,  at  about  5  o'clock  in  the  afternoon  of  that 
day,  he  served  on  L.  H.  Card,  the  plaintiff 's  attorney,  a  copy 


9  7  NEW-YORK  PRACTICE  REPORTS. 

Spencer  agt.  Stevens. 

of  the  foregoing  affidavit  and  notice,  by  leaving  the  same  in  a 
conspicuous  place  in  his  office  at  the  time  above  mentioned, 
the  said  L.  H.  Card  being  then  absent  therefrom." 

0.  ALLEN,  defendant's  counsel. 
E.  H.  MARTIN,  defendant's  attorney. 
M.  T.  EEYNOLDS,  plaintiff's  counsel. 
L.  H.  CARD,  plaintiff's  attorney. 

NELSON,  Chief  Justice.  The  affidavit  does  not  come  within 
the  rule.  It  should  state  that  no  person  was  in  the  office  at  the 
time  of  such  service. 

Motion  denied  with  costs,  without  prejudice. 


MARK  SPENCER  agt.  HENRY  P.  STEVENS  et  al. 

A  motion  to  change  venue  is  too  late  where  a  circuit  is  lost. 

February  Term,  1845. 

MOTION  by  defendant  Stevens  to  change  the  venue  from 
the  city  and  county  of  New-York,  to  the  city  and  county  of 
Albany ;  on  the  usual  affidavit,  for  nine  witnesses. 

Plaintiff  shows  that  the  action  is  assumpsit  brought 
[*98]  *upon  a  promissory  note ;  declaration  served  on  Ste- 
vens, October  14,  1844,  issue  joined  November  4.  On 
the  6th  December,  the  default  of  the  other  defendant  was  en- 
tered, and  on  the  7th  December  this  cause  was  noticed  for 
trial  for  the  circuit  on  the  4th  Monday  of  December.  On 
the  17th  December,  plaintiff's  attorney  received  the  papers 
for  this  motion.  Plaintiff  alleges  delay  to  be  the  object  of  the 
motion. 

W.  "W.  FROTHINGHAM,  defendants'  counsel 
LANSING  &  PRUYN,  defendants'  attorneys. 
L.  HOYT,  plaintiff's  attorney. 


NEW-YORK  PRACTICE  REPORTS.  98 

Clark  agt.  Fraser. 

NELSON,  Chief  justice.     The  plaintiff  has  lost  a  circuit ; 
the  motion  comes  too  late. 
Motion  denied  with  costs. 


GEORGE  W.  CLARK  agt.  ALEXANDER  FRASER  et  al. 

Where  two  referees  agree  to  a  report,  and  the  other  dissents,  saying  to  the  two, 
who  agree,  that  they  can  sign  the  report  without  his  being  present ;  and  it  is 
so  done  the  next  day,  the  cause  being  considered  as  determined ;  held,  that 
the  report  is  good. 

February  Term,  1845. 

MOTION  by  plaintiff  to  set  aside  report  of  referees  in  this 
cause  for  irregularity. 

This  cause  was  referred  by  consent,  in  September  last,  to 
three  referees.  In  December  last  it  was  submitted  to  said 
referees  after  an  extended  investigation.  On  the  25th  Decem- 
ber last  all  the  referees  met  and  had  a  disscussion  of  the  cause. 
All  the  referees  again  met  pursuant  to  agreement  on  the  26th 
December  last ;  and  one  of  the  referees  had  written  out  an 
opinion  in  the  cause,  which  was  then  read ;  which  opinion 
came  to  the  conclusion  that  there  was  nothing  due  from  the 
defendants  to  the  plaintiff.  Two  of  the  referees  agreed  with 
the  opinion,  and  the  other  dissented.  The  subject  was  dis- 
cussed at  some  length  ;  when  the  referee  who  dissented  from 
the  opinion,  remarked  that  two  had  agreed,  and  they  could 
sign  the  report  without  him.  The  next  day  the  report  was 
signed  by  the  two  who  had  agreed ;  and  it  was  understood  by 
all  the  referees  at  the  time,  that  the  cause  was  determined  on 
the  day  previous  to  signing  the  report,  when  all  the  referees 
were  together.  Plaintiff's  counsel  cited  11  J.  R.  402  ;  SJ.R. 
39  ;  2  John.  Cases,  346  ;  7  Cow.  R.  410,  526  and  note  730 ;  2 
Maul  &  Sel.  141 ;  2  R.  S.  306,  §  46  ;  3  R.  S.  732,  §§  56,  57 ;  2 
R.  S.  458,  §  27;  3  R.  S.  780,  §44. 

R.  W.  PECKHAM,  plaintiff's  counsel. 
H.  P.  HASTINGS,  plaintiffs  attorney. 
VOL.  I.  10 


99  NEW-YORK  PRACTICE  REPORTS. 

Colvin  agt.  Alvord. 

F.  H.  HASTINGS,  defendants'  counsel. 
H.  W.  BECKWITH,  defendants'  attorney. 

[*99]         *It  was  insisted  on  the  part  of  the  plaintiff,  that  the 
signing  the  report  when  all  the  referees  were  not  to- 
gether was  irregular. 

NELSON,  Chief  Justice.  Held,  that  the  report  having  been 
agreed  upon  the  day  previous  by  the  two  who  signed  it,  and 
the  other  having  agreed  to  dissent  from  their  conclusion,  the 
conclusion  and  determination  of  the  cause  was  made  by  the 
referees  on  that  day,  and  that  the  fact  of  all  not  having  been 
present  when  the  report  was  signed  the  next  day,  was  im- 
material. 

Decision. — Motion  denied  with  costs. 


HIRAM  COLVIN  agt.  AUGUSTUS  ALVORD  et  al 

A  notice  of  assessment  of  damages  given  before  default  entered,  is  irregular. 
Plaintiff  will  not  be  allowed  to  amend  nunc  pro  tune. 

February  Term,  1845. 

MOTION  by  defendants  to  set  asi(Je  the  judgment  in  this 
cause,  and  any  assessment  of  damages  that  may  have  been 
made  therein  prior  to  said  judgment. 

On  the  25th  day  of  November,  1844,  defendants'  attorney 
served  on  plaintiff's  attorneys  notice  of  retainer  in  this  cause. 
On  the  26th  November,  defendants'  attorney  received  from 
plaintiff's  attorneys  notice  of  assessment  of  damages.  The  de- 
fault was  entered  as  to  both  defendants  on  the  27th  November. 
Judgment  docketed  on  the  llth  day  of  December,  1844,  no 
clerk's  report  having  been  filed,  or  rule  for  final  judgment 
entered.  It  was  insisted  by  defendants'  counsel  that  notice  of 
assessment  of  damages  before  default  was  entered  was  irregular. 
Plaintiff's  counsel  insisted  notice  of  assessment  might  be  given. 
de  bene  esse. 


NEW-YORK  PRACTICE  REPORTS.  99 

Hall  agt.  Gordon. 

B.  W.  PECKHAM,  defendants'  counsel. 
I.  DORR,  defendants'  attorney. 
M.  T.  BEYNOLDS,  plaintiff 's  counsel. 
HAIGHT  &  CHASE,  plaintiff'1  s  attorneys. 

NELSON,  Chief  Justice.  Held,  that  the  notice  of  assessment 
of  damages  before  the  default  was  entered,  was  clearly  irregu- 
lar ;  and  refused  to  allow  the  assessment  to  stand  nuncpro  tune. 

Decision. — Motion  denied,  with  costs. 


JOHNSON  HALL  et  al.  agt.  JOHN  J.  GORDON. 

A  defendant  in  a  proper  case,  is  allowed  to  plead  his  bankrupt  discharge,  not- 
withstanding judgment  may  be  entered  and  execution  issued,  where  it  appears 
he  did  not  receive  his  discharge  in  time  to  plead  it  before  judgment.  He  must 
move  at  the  first  opportunity  for  such  leave. 

February  Term,  1845. 

MOTION  by  defendant  to  set  aside  the  execution  issued  in 
this  cause,  and  for  a  perpetual  stay  of  execution 
therein. 

This  was  an  action  on  a  justice's  ^judgment  (which  [*100] 
action  was  assumpsit  for  goods,  wares  and  merchan- 
dise), and  a  promissory  note ;  commenced  in  August,  1844. 
Judgment  obtained  against  defendant  by  default,  December 
2d,  1844.  The  defendant  was  declared  a  bankrupt  23d  De- 
cember, 1842,  on  his  own  petition.  And  was  discharged  as  a 
bankrupt  December  24th,  1844,  from  all  his  debts,  among 
which  was  inventoried  the  debt  due  to  plaintiffs,  for  which 
this  suit  was  brought.  The  judgment  in  this  cause  having 
been  obtained  before  defendant's  discharge,  he  could  not 
plead  it. 

P.  CAGGER,  defendant's  counsel. 

J.  A.  GATES,  defendant's  attorney. 

A.  TABER,  plaintiffs'  counsel. 

SEDGWICK  &  CUTWATER,  plaintiffs'  attorneys. 


100  NEW- YORK  PRACTICE  REPORTS. 

Tallmadge  agt.  Wallis. 

NELSON,  Chief  Justice.  Held,  that  defendant  having  moved 
first  opportunity,  he  was  entitled  to  relief. 

Decision.  Judgment,  execution  and  subsequent  proceedings 
set  aside  on  payment  of  costs  of  opposing  motion,  with  leave 
to  plaintiffs  to  discontinue  without  costs. 


NATHANIEL  P.  TALLMADGE  agt.  JOSEPH  WALLIS. 

In  the  condition  of  a  bond  for  security  for  costs,  where  plaintiff  is  a  non-resident, 
the  obligors  should  be  bound  to  pay  on  demand  all  costs,  &c. 

February  Term,  1845. 

MOTION  by  defendant  that  plaintiff  file  security  for  costs  in 
twenty  days,  and  that  sureties  justify ;  in  the  meantime  all 
proceedings  on  the  part  of  the  plaintiff  to  be  stayed. 

The  defendant  procured  an  alternative  order  on  the  30th  of 
November,  1844,  for  plaintiff  to  file  security  for  costs  in  this 
cause,  or  show  cause,  &c.  It  appears  that  plaintiff  had  given 
a  bond  for  security  for  costs,  dated  November  8th,  1844,  and 
prior  to  the  commencement  of  this  suit ;  and  filed  it  on  the 
llth  December  last,  together  with  an  affidavit  of  justification. 
The  suit  was  commenced  by  declaration,  which  was  filed  9th 
November,  1844,  and  served  on  defendant  the  12th  of  said  No- 
vember. The  bond  filed  is  executed  by  two  sureties  only  and 
not  by  plaintiff,  with  a  condition  that  plaintiff  shall  pay  on  de- 
mand all  costs,  &c. ;  which  bond  defendant  insists  is  not  in 
conformity  to  the  statute.  (See  5  Hill,  43.) 

P.  CAGGER,  defendant's  counsel. 
A.  S.  GrARR,  defendant's  attorney. 
A.  TABER,  plaintiff's  counsel. 
JAS.  MONCRIEF,  plaintiff's  attorney. 

NELSON,  Chief  Justice.  Held,  that  the  condition  of  the  bond 
should  have  required  the  obligors  to  pay  on  demand  all  costs, 


NEW-YORK  PRACTICE  REPORTS.  101 

Gillespie  agt.  Stanless. 

&c.     The  plaintiff  being  a  non-resident,  the  defendants  were 
not  bound  to  seek  him  out  to  demand  the  costs  of  him. 

Decision. — Motion  granted. 


*LouiSA  GILLESPIE,  by  her  next  friend  ANN  GILL-     [*101] 
ESPIE  agt.  MICAJAH  M.  STANLESS. 

A  plaintiff 's  attorney  is  liable  for  costs  under  the  statute,  (no  security  having  been 
filed,)  where  the  plaintiff,  an  infant,  prosecutes  by  her  next  friend,  and  the 
plaintiff  and  next  friend  become  non-residents  before  judgment  for  costs  is  en- 
tered; a  delay  of  three  years  in  proceeding  against  him  is  not  sufficient  to  ex- 
empt him. 

March  Special  Term,  1845. 

MOTION  by  defendant  at  last  February  special  term,  for  an 
order  that  John  B.  Manchester,  Esq.,  the  attorney  for  the 
plaintiff  in  this  cause,  pay  to  the  defendant's  attorney  the  de- 
fendant's costs,  as  taxed  in  said  cause,  and  the  costs  of  this 
motion,  on  demand  ;  or  that  an  attachment  issue. 

It  appears  on  the  part  of  defendant,  that  this  was  an 
action  of  slander,  commenced  in  the  New- York  common 
pleas,  in  April,  1841,  by  capias.  At  the  time  of  the  commence- 
ment of  such  suit,  the  said  plaintiff,  Louisa  C.  Gillespie,  was  an 
infant  under  the  age  of  twenty-one  years  ;  the  suit  was  com- 
menced and  prosecuted  by  her  next  friend,  Ann  Gillespie. 
No  security  for  costs  has  ever  been  given  by  said  next  friend. 
Defendant  appeared  by  his  attorney  and  perfected  special  bail 
therein ;  and  afterwards  and  before  said  cause  was  at  issue, 
and  on  or  about  the  6th  July,  1841,  removed  said  cause  by 
certiorari  to  this  court ;  after  such  removal,  the  cause  was  no- 
ticed for  trial  by  plaintiff 's  attorney  for  the  September  and 
December  circuits,  1841 ;  not  having  been  brought  to  trial, 
defendant's  attorney  moved  for  and  obtained  judgment  as  in 
case  of  nonsuit,  at  the  December  special  term,  1841  ;  had  his 
costs  taxed  on  notice  to  plaintiff's  attorney ;  the  costs  not  hs7> 


101  NEW-YORK  PRACTICE  REPORTS. 

Gillespie  agt.  Stanless. 

ing  been  paid,  defendant  filed  his  judgment  record  for  said 
costs  on  the  4th  June,  1842.     In  October,  1842,  defendant's 
attorney  issued  afi.fa.  on  said  judgment,  which  was  returned 
unsatisfied  in  Januar}',  1843.    The  plaintiff  and  her  next  friend 
were  residents  of  the  city  of  New- York  at  the  time  of  the  com- 
mencement of  this  suit,  but  before  judgment  wasper- 
[*102]     fected,  they  both  ^removed  from  the  state  of  New- 
York,  and  have  not  since  returned.     No  part  of  the 
costs  have  ever  been  paid.     It  appears  on  the  part  of  plaintiff's 
attorney,  the  appointment  of  next  friend  was  duly  made  and 
filed  before  this  suit  was  commenced;  that  he,  plaintiff's  at- 
torney, in  November,  1841,  left  the  city  of  New  York  and  did 
not  return  until  the  spring  of  1842  ;  that  when  he  left  New- 
York,  he  placed  this  suit  with  others  in  the  hands  of  R  Scott, 
Esq.,  with  a  written  consent  to  be  substituted  in  his  place  as 
attorney  in  this  cause  ;  that  since  that  time  up  to  the  day  he  re- 
ceived the  papers  for  this  motion,  he  had  known  nothing  of 
the  proceedings  in  the  cause  ;  that  no  bill  of  costs  was  ever 
served  on  him  in  this  suit — no  notice  was  ever  given  him  that 
any  costs  existed  against  the  plaintiff.     No  demand  for  the 
payment  of  any  costs  in  this  cause  was  ever  made  of  him  by 
defendant's  attorney  or  any  other  person.     He  has  never  re- 
ceived any  compensation  for  costs  from  plaintiff  or  any  one 
else,  and  is  informed  said  Scott  has  never  received  any.    Plain- 
tiff's attorney  cited  3  Mass.  R.  561 ;  2  It.  S.  286;  2  Wend. 
293. 

M.  T.  REYNOLDS,  defendant's  counsel. 

F.  SAYRE,  defendant's  attorney. 

A.  TABER,  plaintiff's  counsel. 

3.  B.  MANCHESTER,  plaintiff's  attorney. 

NELSON,  Chief  Justice.  Held,  that  the  attorney  was  liable 
under  the  statute,  he  acted  for  a  non-resident  plaintiff  and  an 
infant ;  no  substitution  having  ever  been  made  ;  the  delay  is 
not  a  sufficient  excuse. 

Decision— Motion  granted  without  costs. 


NEW-YORK  PRACTICE  REPORTS.  102 

Mills  agt.  Chapman. 


SILAS  H.  MILLS,  Assignee,  &c.,  agt.  ALPHEUS  CHAPMAN. 

"Where  the  defendant's  order  requiring  plaintiff  to  file  security  for  costs,  or  show 
cause,  &c.,  and  staying  his  proceedings,  beyond  the  time  for  noticing  the  cause 
for  trial ;  motion  for  judgment  as  in  case  of  nonsuit  will  be  denied,  with  costs. 

March  Special  Term,  1845.     • 

MOTION  by  defendant  for  judgment  as  in  case  of  nonsuit. 

On  the  ground  that  the  plaintiff  did  not  notice  the  cause  at 
the  last  January  Essex  circuit.  It  appears  on  the  part  of  the 
plaintiff,  that  issue  was  joined  in  this  cause,  on  the  20th  De- 
cember last.  On  the  30th  December  last,  an  order  by  a  su- 
preme court  commissioner,  was  served  on  plaintiff's  attorney, 
requiring  plaintiff  to  file  security  for  costs  in  twenty  days  af- 
ter service  of  same,  or  show  cause  at  the  next  special  term  of 
this  court  why  he  had  not  done  so,  and  that  in  the  meantime 
all  proceedings  on  the  part  of  plaintiff  be  stayed.  At  the  time 
this  order  was  served,  the  cause  was  not  noticed  for  trial ; 
plaintiff  appeared  at  the  February  special  term,  (at  which  he 
was  required  by  said  order,)  to  show  cause ;  the  de- 
fendant *not  appearing,  plaintiff  took  a  rule  for  costs  [*103] 
against  him.  The  circuit  was  held  28th  January  last. 

0.  ALLEN,  defendant's  counsel. 
J.  F.  HAVENS,  defendant's  attorney. 
A.  C.  HAND,  plaintiff's  counsel. 
JONA.  K  TARBELL,  plaintiff's  attorney. 

BEARDSLEY,  Justice.  Held,  that  the  order  to  stay  pro- 
ceedings, served  on  plaintiff's  attorney,  prevented  plaintiff 
from  preceding  to  trial,  as  he  had  elected  to  show  cause.  Mo- 
tion denied  with  costs. 


103  NEW-YORK  PRACTICE  REPORTS. 

Harris  agt.  Ensign. 


CHARLES  HARRIS  agt.  JOHN  ENSIGN. 

An  agreement  in  writing,  extended  by  parol  between  the  parties,  as  to  the  set- 
tlement of  the  cause,  is  conclusive  against  the  defendant,  on  motion  for  judg- 
ment as  in  case  of  nonsuit ;  where  the  conditions  of  the  agreement  is  deemed 
not  to  be  fulfilled  by  defendant  before  the  circuit. 

March  Special  Term,  1845. 

MOTION  by  defendant  for  judgment,  as  in  case  of  nonsuit, 
on  the  ground  that  the  plaintiff  did  not  notice  the  cause  at  the 
last  January  Essex  circuit. 

It  appears  on  the  part  of  the  plaintiff,  that  a  stipulation  in 
writing  was  entered  into  between  plaintiff  and  defendant,  in 
January,  1844 ;  that  this  cause  should  go  over  the  (then  Jan- 
uary) circuit,  and  that  it  should  not  be  brought  to  trial  until 
one  Phelps  and  Spencer  should  ascertain  the  amount  of  dam- 
ages which  plaintiff  claimed  from  defendant  on  account  of 
cutting  and  carrying  away  certain  trees  belonging  to  plaintiff, 
for  which  this  action  was  brought ;  which  amount  of  damages 
was  ascertained  in  May,  1844,  and  reported  to  both  parties, 
who  were  then  present.  And  at  this  time  defendant  ex- 
pressly agreed  to  pay  the  sum  so  reported  due  to  the  plaintiff, 
and  the  plaintiff's  costs  also.  And  further  that  this  suit 
should  remain  as  it  then  was,  and  no  further  costs  should  be 
made  therein,  until  defendant  should  have  time  to  pay,  and 
should  pay  the  sum  so  reported  due  to  the  plaintiff;  under 
the  agreement  plaintiff  did  not  notice  the  cause  for  trial  at  the 
last  January  circuit. 

O.  ALLEN,  defendant's  counsel. 

HAVENS  &  TARBELL,  defendants  attorneys. 

0.  CLARK,  plaintiff's  counsel. 

CLARK  &  MILLIMAN,  plaintiff's  attorneys. 

BEARDSLEY,  Justice.  Held,  that  the  agreement  made  by 
defendant  with  the  plaintiff,  was  binding,  and  denied  the 
motion  with  costs. 


NEW-YORK  PRACTICE  REPORTS.  103 

Pike  agt.  Power. 


SOLOMON  M.  PIKE  agt.  JOHN  H.  POWER. 

Under  the  rule  to  declare  before  the  end  of  the  next  term,  &c.,  the  declaration 
must  be  served  before  the  actual  adjournment  of  the  court.     It  is  a  rule  sedente 


March  Special  Term,  1845. 

MOTION  by  defendant  at  last  February  special  term 
to  set  aside  the  default  *entered  by  the  plaintiff,  and     [*104] 
all  subsequent  proceedings  with  costs  for  irregularity. 

It  appears  this  is  a  special  action  of  assumpsit,  commenced 
against  defendant  as  an  attorney ;  by  capias.  On  the  8th 
July  last,  defendant  served  plaintiff's  attorney  with  a  notice 
to  declare  in  the  cause  before  the  end  of  the  next  succeeding 
term  of  this  court,  which  was  October  term.  The  plaintiff 
did  not  declare,  until  the  13th  November  last.  On  the  6th 
November  last,  defendant  entered  plaintiff's  default  for  not 
declaring,  and  on  the  8th  November  defendant  served  person- 
ally on  plaintiff's  attorney  a  copy,  costs  and  notice  of  taxation 
in  this  cause  ;  the  costs  were  taxed  and  judgment  entered  on 
the  12th  November.  It  also  appears  that  the  October  term 
of  this  court,  1844,  adjourned  sine  die  on  the  4th  November 
last.  On  the  13th  November,  the  day  that  plaintiff  served 
his  declaration,  he  also  served  defendant's  attorney  with  a  no- 
tice of  motion  to  set  aside  the  default,  &c.,  entered  against 
him.  The  plaintiff 's  attorney  proceeded  on  the  ground  that 
he  was  in  time  to  serve  his  declaration  until  the  expiration  of 
four  weeks  from  the  commencement  of  the  term.  The  motion 
was  heard  at  the  last  December  special  term,  and  denied  with- 
out prejudice,  solely  on  the  ground  that  plaintiff  did  not  show 
in  his  papers,  that  a  default  had  been  entered  against  him. 
Plaintiff  entered  defendant's  default  for  not  pleading  to  the 
declaration  on  the  24th  December  last.  Defendant's  attorney 
having  on  the  10th  December  returned  the  declaration  served 
on  him,  to  plaintiff's  attorney,  with  notice  it  would  not  be  ac- 
cepted, on  the  ground  of  not  having  been-  served  in  time. 
The  plaintiff's  motion  to  set  aside  the  default  entered  for  not 


104  NEW-YORK  PRACTICE  REPORTS. 

Howell  agt.  Kinney. 

declaring,  and  the  defendant's  motion  to  set  aside  the  default 
entered  for  not  pleading,  are  brought  on  at  this  term,  and  both 
depend  upon  the  same  question  ;  to  wit :  whether  a  declara- 
tion served  within  four  weeks  from  the  commencement  of  the 
term,  and  after,  the  actual  adjournment  of  the  court,  is  good. 

A.  TABER,  defendant's  counsel. 
J.  H.  POWER,  defendant  in  pro.  per. 
J.  EDWARDS,  plaintiffs  counsel. 
J.  H.  STEWART,  plaintiff's  attorney. 

NELSON,  Chief  Justice.  Held,  that  the  rule  to  declare  be- 
fore the  end  of  the  next  term,  is  a  rule  sedente  curia,  and  that 
a  declaration  served  after  the  actual  adjournment  of  the  court, 
although  within  four  weeks  from  the  first  day  of  term,  is  not 
in  time.  Defendant's  motion  granted  with  costs;  plaintiff's 
motion  denied  with  costs. 


[*105]    *WILLIAM  E.  HOWELL  agt.  WILLIAM  H.  KINNEY. 

An  attorney,  in  a  cause  tried  by  referees,  is  not  liable  for  referees'  fees. 

March  Special  Term,  1845 

MOTION  on  behalf  of  the  referees  in  this  cause,  at  February- 
special  term,  that  William  S.  Sears,  Esq.,  the  attorney  for  the 
plaintiff,  pay  the  referees'  fees  in  said  cause,  and  the  costs  of 
this  motion,  or  in  default,  that  an  attachment  issue  against 
him. 

It  appears  that  three  referees  were  appointed  in  this  cause 
by  a  rule  of  court ;  the  referees  proceeded  and  heard  the  mat- 
ters in  controversy  between  the  parties,  and  made  their  report 
on  the  19th  July,  1844 ;  that  there  was  due  to  plaintiff  from 
the  defendant  $395.52,  besides  costs ;  on  the  same  day  they 
gave  notice  thereof  to  plaintiff's  attorney  and  counsel,  Wm.  S. 
Sears,  Esq.,  and  of  the  amount  of  the  referees'  fees,  to  wit : 
$90,  and  requested  said  Sears  to  pay  the  same,  which  he  re- 


NEW-YORK  PRACTICE  REPORTS.  105 

Jones  agt.  Van  Epps. 

fused  to  do;  and  several  times  subsequently  Sears  was 
requested  to  pay  the  same,  which  he  declined  doing.  It  ap- 
pears the  bill  was  not  taxed,  and  the  amount  never  presented 
to  Sears  in  the  form  of  a  bill,  and  he  insists  the  amount  is  not 
correct,  it  being  too  much.  The  plaintiff  was  informed  by 
Sears  of  the  amount  of  the  fees,  but  did  not  furnish  any  funds 
to  pay  the  same. 

"W.  W.  CAMPBELL,  counsel  for  referees. 
E.  SEELEY,  attorney  for  referees. 
J.  EDWARDS,  plaintiff's  counsel. 
WM.  S.  SEARS,  plaintiffs  attorney. 

NELSON,  Chief  Justice.     Held,  that  an  attorney  is  not  lia- 
ble for  the  fees  of  referees.     Motion  denied,  with  costs. 


JOHN  H.  JONES,  Administrator,  &c.  of  HENRY  JONES,  de- 
ceased agt.  HARPERD  V.  D.  VAN  EPPS. 

A  delay  of  three  years  in  moving  the  court  to  compel  payment  of  a  bill  of  costs, 
is  considered  too  great ;  the  motion  will  be  denied  on  that  ground. 

March  Special  Term,  1845. 

MOTION  by  plaintiff  for  a  rule  or  order  requiring  the  de- 
fendant to  pay  a  taxed  bill  of  costs. 

A  judgment  was  perfected  in  favor  of  Henry  Jones  against 
the  defendant  Yan  Epps,  on  the  9th  July,  1836,  in  this  court, 
on  a  report  of  referees  for  $157.29  damages  and  costs.  Yan 
Epps  moved  to  set  aside  the  report  of  the  referees,  which  mo- 
tion was  denied  at  July  term,  1838.  On  the  19th  July,  1838, 
plaintiff's  attorney  had  his  costs  taxed  at  $76.67,  for  opposing 
that  motion,  on  due  notice.  On  the  23d  July,  1838,  Yan 
Epps  was  served  personally  with  a  copy  of  the  rule  denying 
the  motion  to  set  aside  the  report  of  the  referees,  and  a  copy 
of  the  taxed  bill  of  costs.  Yan  Epps  refused  to  pay  the  same 


106  XEW-YORK  PRACTICE  REPORTS. 

Robinson  agt.  Sinclair. 

on  demand,  and  ever  since  has  refused  to  pay  the 
[*106]  same ;  and  the  plaintiff  alleges  the  *bill  to  be  still  due 

and  unpaid.  In  September,  1838,  Henry  Jones,  the 
plaintiff,  died  intestate.  In  October  term,  1841,  the  original 
judgment  against  Van  Epps  was  revived  by  scire  facias,  in 
favor  of  and  in  the  name  of  John  H.  Jones,  his  administrator  ; 
no  part  of  the  costs  in  the  taxed  bill  before  mentioned,  was 
included  in  the  judgment  of  revival.  The  plaintiff  alleges  he 
has  no  remedy  except  by  the  interposition  and  order  of  this 
court. 

M.  T.  REYNOLDS,  plaintiff 's  counsel. 
J.  KOON,  plaintiff's  attorney. 

H.  V.  D.  VAN  EPPS,  counsel  and  attorney  in  propria 
persona. 

BEARDSLEY,  Justice.  Held  that  the  delay  was  too  great  to 
open  the  matter  now,  the  motion  on  that  ground  must  be 
denied. 

Decision. — Motion  denied  without  costs. 


E.  DE"WITT  ROBINSON  agt.  ROBERT  SINCLAIR. 

The  original  affidavit  accompanying  a  plea  must  be  served,  a  copy  is  not  a  com- 
pliance with  the  rule.  A  general  affidavit  of  merits  must  be  made  by  defend- 
ant on  moving  to  set  aside  default,  Ac.  An  original  affidavit  of  merits  made, 
to  annex  to  a  plea,  will  not  answer. 

March  Special  Term,  1845. 

MOTION  by  defendant  to  set  aside  default  and  subsequent 
proceedings  for  irregularity  with  costs. 

This  suit  was  commenced  25th  December  last,  by  declara- 
tion containing  indebitatus,  money  and  merchandise  counts, 
only,  with  copy  note  annexed  and  notice  that  it  was  the  only 
demand  for  which  the  suit  was  brought.  On  the  14th  Janu- 
ary last,  defendant's  attorney  prepared  plea  of  general  issue 


NEW-YORK  PRACTICE  REPORTS.  106 

Robinson  agt.  Sinclair. 

affidavit  of  merits,  and  notice  of  set-off,  and  served  copies 
thereof  on  plaintiff's  attorney  by  putting  same  in  post-office  at 
New- York,  directed  to  plaintiff's  attorney  at  Albany,  and 
paying  postage.  On  the  18th  of  January  last,  defendant's  at- 
torney received  from  plaintiff's  attorney  through  the  post-office, 
the  copy  plea,  affidavit  of  merits,  &c.,  which  he  had  served, 
with  a  notice  from  plaintiff 's  attorney  that  he  could  not  ac- 
cept them,  inasmuch  as  the  plea  was  not  accompanied  by  the 
original  affidavit  required  by  the  rules  and  practice  of  this 
court.  The  same  day  they  were  received,  defendant's  attor- 
ney annexed  the  original  affidavit  to  the  copy  plea,  and  re- 
turned same  by  mail  to  plaintiff 's  attorney.  On  the  24th  of 
January  last,  plaintiff's  attorney  returned  the  same  to  defend- 
ant's attorney,  with  a  notice  that  they  came  too  late ;  the 
defendant's  default  was  entered  previous  to  the  18th  of  Janu- 
ary, the  day  on  which  defendant's  plea,  &c.,  were  mailed  at 
New-York.  The  defendant  has  annexed  to  his  mov- 
ing papers,  *the  original  affidavit  of  merits  to  annex  [*107] 
to  his  plea,  sworn  to  on  the  14th  January  last,  and 
has  no  other  affidavit  of  merits  for  this  motion. 

S.  STEVENS,   defendants  counsel. 
R  SAYRE,  defendant's  attorney. 
M.  T.  EEYNOLDS,  plaintiff'1  s  counsel. 
J.  KoON,  plaintiff's  attorney. 

BEARDSLEY,  Justice.  Held,  that  the  original  affidavit 
should  have  accompanied  the  plea  served,  and  that  a  general 
affidavit  of  merits  must  be  made  on  the  motion. 

Decision. — Motion  denied  with  costs,  without  prejudice. 


10*7  NEW-YORK  PRACTICE  REPORTS. 

How  agt.  Gilbert. 


HORACE  How  et  a?.,  plaintiffs  in  error  agt.  TILLY  GILBERT 
et  a?.,  defendants  in  error. 

A  motion  to  set  aside  a  writ  of  error,  and  order  staying  proceedings,  made  after 
two  years  from  the  issuing  of  the  writ,  will  be  denied  with  costs,  unless  suffi- 
cient excuse  is  offered  for  the  delay. 

March  Special  Term,  1845.      ^ 

MOTION  by  defendants  in  error  to  set  aside  the  writ  of  er- 
ror, issued  in  this  cause,  and  to  set  aside  all  orders  to  stay 
proceedings,  and  to  recover  the  costs  of  settling  the  bill  of  ex- 
ceptions therein  to  be  taxed. 

This  cause  originated  in  a  justice's  court.  An  appeal  was 
tried  at  the  Cattaraugus  common  pleas  in  June  term,  1841, 
and  a  judgment  rendered  for  the  plaintiffs,  Gilbert  et  a£,  against 
the  defendants,  How  et  aZ.,  for  $48.98  damages,  which  was 
perfected  for  the  damages  mentioned  and  $52.99  costs,  on  the 
10th  July,  1841.  A  bill  of  exceptions  was  subsequently  in 
January  term,  1842,  settled,  as  of  the  October  term  of  said 
court  previous.  No  further  proceedings  were  had  in  the 
cause  until  October,  1843,  when  an  execution  was  issued  on 
the  judgment  to  the  sheriff  of  Cattaraugus  county,  to  enforce 
its  collection.  In  January,  1848,  the  defendants  got  an  order 
staying  proceedings  and  brought  a  writ  of  error  to  remove  the 
cause  to  this  court,  and  gave  notice  thereof  to  the  attorneys 
for  defendants  in  error.  The  writ  of  error  was  filed  on  the 
9th  January,  1843.  No  further  proceedings  have  been  had 
in  said  cause  since.  The  defendants  in  error  swear  that  they 
never  received  any  notice  of  the  issuing  of  any  writ  of  error, 
and  the  judgment  is  still  due  and  unpaid. 

WELLS,  defendants'  counsel. 

J.  BURT,  defendants'  attorney. 

A.  TABER,  plaintiffs'  counsel. 

Fox  &  WHEELER,  plaintiffs'  attorneys. 


NEW-YORK  PRACTICE  REPORTS.  108 

Martin  agt.  Odel). 

BEARDSLEY,  Justice.    Denied  the  motion  on  the  ground  of 
delay,  no  excuse  shown  for  not  moving  sooner. 

Decision. — Motion  denied  with  costs. 


*NATHANIEL  P.  MARTIN  agt.  BENJAMIN  ODELL.    [*108] 

A  motion  for  an  order  to  restrain  defendant  from  committing  waste  on  premises, 
will  be  denied,  on  the  defendant's  fully  denying  the  commission  of  waste. 

March  Special  Term,  1845. 

MOTION  by  plaintiff  for  an  order  restraining  the  defendant 
in  this  cause  from  the  commission  of  waste,  upon  the  land  or 
premises  for  the  recovery  of  which  this  suit  is  brought. 

This  is  an  action  of  ejectment  for  about  fifty -three  acres  of 
land.  Issue  was  joined  on  the  21st  January,  1845.  The 
plaintiff  states  that  the  timber  on  the  premises  is  of  great 
value — that  the  defendant  since  this  suit  has  been  commenced, 
has  been  and  still  is  committing  waste  upon  the  premises,  by 
cutting  and  felling  the  standing  timber  thereon  ;  and  that  the 
defendant  has  frequently  told  plaintiff  he  should  go  on  and 
cut  down  what  timber  he  pleased  upon  the  premises.  The 
defendant  states  that  he  has  been  in  the  occupation  and  pos- 
session of  the  premises  for  twenty-seven  years  last  past,  under 
claim  of  title  ;  within  that  time  no  other  person  has  exercised 
or  claimed  to  exercise  any  acts  of  ownership  over  the  premises, 
until  within  a  year  past,  when  plaintiff  claimed  the  same  un- 
der a  title  from  some  person.  The  defendant  states  he  is  the 
owner  of  the  premises,  and  believes  no  one  else  has  any  right 
or  title  therein.  And  also  that  since  the  commencement  of 
this  suit,  defendant  has  committed  no  waste  on  the  premises  ; 
he  has  cut  down  and  carried  away  such  timber  as  was  neces- 
sary for  his  firewood  only.  And  fully  denies  that  he  has  com- 
mitted waste  on  the  premises  at  all. 


108  NEW-YORK  PRACTICE  REPORT& 

Harker  agt.  McBride. 

J.  A.  SPENCER,  plaintiff's  counsel. 

DAVIS,  WOODCOCK  &  DAVIS,  plaintiff's  attorneys. 

A.  TABER,  defendant's  counsel. 

HAYNER  &  JOHNSON,  defendant's  attorneys. 

BEARDSLEY,  Justice.    Denied  the  motion,  on  the  ground 
that  the  defendant  had  fully  denied  the  commission  of  waste. 


ABEL  HARKER,  plaintiff  in  error,  agt.  ELIZA  MCBRIDE,  Ad- 
ministratrix, &c.,  defendant  in  error,  and  one  other  cause. 

A  motion  denied  on  the  merits  without  any  leave  given  to  renew,  cannot  be 
heard  at  a  subsequent  term.  The  party  moving  in  such  cases,  should  first 
move  to  open  or  vacate  the  former  rule. 


March  Special 

MOTION  by  plaintiff  in  error  to  set  aside  the  judgments  en- 
tered up  in  these  causes,  and  to  permit  the  plaintiff  in  error  to 
be  let  in  to  an  argument  of  the  causes  upon  their  merits. 

On  the  10th  February  last,  at  the  February  special  term,  the 

plaintiff  in  error  made  a  motion  in  these  causes  for  the  same 

purpose,  for  which   he  now  moves  ;    which  motion 

[*109]  *was  denied  with  costs.     The  rule  entered  upon  the 

decision  of  the  motion  reads  as  follows  :    "  After  hear- 

ing counsel  for  both  parties  on  motion  of  plaintiff  in  error  to 

set  aside  the  judgments  entered  in  the  above  entitled  causes, 

ordered  that  same  be  denied  with  seven  dollars  costs." 

M.  T.  REYNOLDS,  plaintiff's  counsel. 
MARTIN  •&  STRONG,  plaintiff's  attorneys. 
S.  STEVENS,  defendant's  counsel. 
"W.  H.  TAGGARD,  defendant's  attorney. 

BEARDSLEY,  Justice.  Denied  the  motion  on  the  ground  that 
a  final  rule  was  entered  at  the  last  special  term,  without  any 
leave  given  to  renew. 


NEW-YORK  PRACTICE  REPORTS.  109 

The  People  agt.  The  Judges  of  Rensselaer  Common  Pleas. 


THE  PEOPLE  ex  rel  HENRY  W.  KOON  agt.  THE  JUDGES  OF 
THE  COURT  OF  COMMON  PLEAS  OF  THE  COUNTY  OF 
RENSSELAER. 

An  alternative  mandamus  allowed  to  the  court  of  common  pleas,  to  bring  up  the 
question,  whether  a  party  to  a  suit  in  the  common  pleas  can  recover  taxed 
costs  on  demurrer,  in  addition  to  twenty  dollars  costs  allowed  by  statute,  on  a 
certiorari  brought  up  from  a  justice's  court. 

March  /Special  Term,  1845. 

THIS  was  an  ex  parte  motion  for  an  alternative  mandamus 
against  the  defendants,  to  require  them  to  vacate  an  order,  de- 
nying a  motion  of  the  relator  as  defendant  in  error,  for  a  re- 
taxation  of  a  bill  of  costs  on  certiorari,  from  justice's  court,  to 
the  common  pleas. 

The  facts  in  this  case  appear  to  be  that  one  Facks,  plaintiff 
in  error,  removed  a  cause  from  a  justice's  court  wherein  said 
Henrj  TV.  Koon  was  defendant  in  error,  by  certiorari  to  the 
court  of  common  pleas  of  Rensselaer  county  ;  and  assigned  er- 
ror in  fact,  to  which  Koon,  defendant  in  error,  demurred  ;  the 
demurrer  was  brought  to  argument  and  overruled  by  the 
court.  The  plaintiff  in  error  made  out  his  bill  of  costs,  and 
inserted  in  it  twenty  dollars  costs  upon  certiorari  by  statute, 
and  also  made  out  a  bill  of  costs  on  the  demurrer  in  addition, 
and  had  the  same  taxed,  including  the  twenty  dollars  by  stat- 
ute. The  facts  in  the  case  were  admitted  before  the  taxing- 
officer.  The  defendant  in  error  objected  before  the  taxing  offi- 
cer to  all  of  the  bill,  except  the  gross  sum  of  $20.  The  tax- 
ing officer  overruled  the  objection  and  taxed  the  bill  at  $83.08. 
The  defendant  in  error  moved  for  a  retaxation  of  the  costs  be- 
fore the  court  of  common  pleas,  which  was  denied  with  costs, 
on  the  15th  February,  1845.  The  defendant  in  error  and  re- 
lator insists  that  no  more  than  $20  costs  can  be  taxed  under 
the  statute  on  certiorari,  from  justice's  court,  and  cites  Laws  of 
1840,  p.  332,  §  12  ;  4  Hill,  541 ;  19  Wend.  56  and  68  ;  also, 
18  and  20  Wend 

BEARDSLEY,  Justice.    Allowed  an  alternative  mandamus. 
YOL.  I.  11 


NEW-YORK  PRACTICE  REPORTS. 


Moss  agt.  Raynor. 


[*110]    *JOSEPH  Moss  agt.  JOHN  EAYNOR  and  CHARLES  H. 

POND. 

An  attorney  appearing  for  a  corporation,  defendant,  and  who  is  treated  as  such 
through  all  the  stages  of  the  cause,  without  any  proof  of  a  revocation  of  his 
powers,  held  sufficient  to  deny  a  motion  to  set  aside  the  judgment,  for  irregu- 
larity in  the  service  of  the  process  on  the  corporation. 

March  Special  Term,  1845. 

MOTION  by  defendants  to  set  aside  a  judgment  against  the 
Eossie  Lead  Mining  Company,  the  summons  therein  and  all 
proceedings  thereon,  for  irregularity. 

This  is  an  action  of  debt,  in  which  the  plaintiff  seeks  to  re- 
cover of  the  defendants,  alleging  that  they  were  holders  of 
stock  in  the  Eossie  Lead  Mining  Company,  a  demand  alleged 
to  be  due  by  the  said  company,  under  the  provisions  of  the 
act  incorporating  the  same ;  by  which  stockholders  are  made 
liable  for  debts  of  the  company  after  judgment  has  been  ob- 
tained against  said  company  therefor,  and  an  execution  re- 
turned unsatisfied.  The  suit  against  the  company  on  which 
the  judgment  mentioned  in  the  declaration  in  this  suit  was 
obtained,  was  commenced  by  summons,  returnable  January 
term,  1844,  and  was  served  on  Nathan  S.  Pitkin,  who  defend- 
ants allege,  had  ceased  to  be  an  officer  and  director  of  said 
company,  and  held  no  official  relation  to  the  company  what- 
ever, by  which  service  of  a  summons  on  him  became  legal, 
and  that  he  had  no  authority  to  act  for  said  company.  Pitkin 
handed  the  summons  to  an  attorney,  who  appeared  in  the  suit 
for  the  company.  The  defendants  allege  that  the  attorney 
was  not  authorized  by  the  company  to  appear  in  the  suit.  The 
defendants  state  that  they  had  no  notice  or  knowledge  of  the 
judgment  or  of  the  suit  until  served  with  the  declaration  in 
this  cause,  on  or  about  the  28th  December  last,  and  allege  that 
this  suit  is  carried  on  for  the  benefit  of  one  Averell,  former 
president  of  said  company.  The  plaintiff  shows  that  the  suit 
against  the  company  in  his  favor,  was  commenced  on  a  prom- 
issory note  given  by  the  company ;  that  the  summons  was 


NEW- YORK  PRACTICE  REPORTS.  110 

Moss  agt.  Raynor. 

sent  to  the  sheriff  of  St.  Lawrence  county,  with  directions  to 
serve  it  on  some  of  the  officers  of  said  company,  according  to 
statute.  The  sheriff  informed  plaintiff 's  attorney,  that  Pitkin 
was  a  director  of  said  corporation,  and  the  only  one  upon 
whom  service  could  be  made,  and  the  only  one  who  had  not 
sold  out  his  stock  therein.  The  plaintiff's  attorney  thereupon 
moved  this  court  at  the  December  special  term,  1843,  for  a 
rule  granting  leave  to  serve  the  summons  on  a  director  of  said 
company,  which  was  granted  ;  and  the  summons  was  subse- 
quently served  by  the  sheriff  on  said  Pitkin,  in  accordance 
with  said  rule.  On  the  19th  January,  1844,  plaintiff's  attor- 
ney received  a  notice  from  Eansom  H.  Gillett,  Esq.,  that  he 
was  retained  to  defend  said  suit,  and  was  treated  as 
such  attorney  in  the  subsequent  ^stages  thereof.  At  [*1H] 
the  following  July  circuit  of  St.  Lawrence  county,  a 
verdict  on  an  inquest  was  taken  against  the  corporation 
and  judgment  thereupon  entered ;  there  were  five  suits 
commenced  against  the  corporation,  three  of  which  were  de- 
fended ;  in  the  other  two,  judgments  by  default  were  taken 
against  the  company  ;  the  process  in  each  of  the  suits  were 
served  on  said  Pitkin,  and  said  Gillet  appeared  as  attorney  for 
said  corporation  in  each  of  them. 

A.  TARER,defendants'  counsel. 
(r.  C.  GODDARD,  defendants'  attorney. 
J.  A.  SPENCER,  plaintiff's  counsel. 
SPENCER  &  KERN  AN,  plaintiff's  attorneys. 

iiEARDSLEY,  Justice.  Denied  the  motion,  on  the  ground 
tlA?,t  the  Kossie  Lead  Mining  Company  had  appeared  by  at- 
torney, and  there  was  no  evidence  to  show  that  his  powers 
had  teen  revoked. 

Decision. — Motion  denied  with  seven  dollars  costs  to  plain- 
tiff's attorneys,  in  this  suit,  and  with  seven  dollars  costs  to 
plaintiff's  attorneys,  in  the  suit  against  the  company. 


Ill  NEW-YORK  PRACTICE  REPORTS. 

The  People  agt.  Judges  of  Dutchess  Common  Pleaa. 


THE  PEOPLE  ex  rel  JOSEPH  E.  JONES  agt.  THE  JUDGES  OF 
THE  DUTCHESS  COMMON  PLEAS. 

An  alternative  mandamus  allowed  to  bring  up  the  question,  whether  the  com- 
mon pleas  have  jurisdiction,  to  make  an  order  for  costs  against  an  appellant 
where  they  decide  to  dismiss  the  appeal  from  a  justice's  judgment,  on  the 
ground  they  have  no  jurisdiction ;  because  the  justice's  judgment  is  void. 

March  /Special  Term,  1845. 

Motion  ex  parte  by  relator  for  a  mandamus,  to  require  the 
defendants  to  vacate  an  order  for  costs  made  by  them  at  the 
last  February  term,  against  the  relator. 

The  facts  are  as  follows :  On  the  30th  July,  1843,  one  Peter 
A.  Stickle  commenced  a  suit  before  a  justice  of  the  peace  of 
the  county  of  Dutchess,  by  summons  against  said  Joseph  E. 
Jones ;  the  cause  was  tried  on  the  9th  day  of  August,  1843  ; 
the  justice,  five  days  thereafter,  to  wit,  on  the  14th  of  August, 
rendered  judgment  in  favor  of  said  Stickle  against  said  Jones, 
for  ninety-eight  dollars  damages  and  the  costs  of  suit.  Jones 
procured  the  cause  to  be  removed  to  the  Dutchess  common 
pleas  by  an  appeal,  and  at  the  last  February  term  of  said 
court,  on  the  3d  day  of  February,  1845 ;  the  cause  was  moved 
for  trial  by  the  plaintiff  Stickle ;  the  defendant  moved  that 
the  appeal  be  dismissed  because  the  court  had  no  jurisdiction  ; 
the  original  judgment  as  rendered  by  the  justice  being  void ; 
which  motion  prevailed,  and  the  court  refused  to  hear  the 
trial  of  the  cause  on  that  ground.  At  a  subsequent  day  of 
said  court  during  the  same  term,  the  plaintiff's  attor- 
[*112]  uey  moved  for  an  order,  that  *defendant  Jones  pay 
the  costs  of  the  appeal,  which  was  opposed  by  de- 
fendant's attorney,  on  the  ground  that  the  court  had  no  juris- 
diction of  the  parties,  for  any  purpose,  except  the  motion  to 
discontinue  the  appeal.  The  court  granted  the  motion,  and 
ordered  defendant  to  pay  the  appellee's  cost  of  the  appeal,  and 
also  the  appellee's  costs  of  opposing  the  motion  to  dismiss  the 
appeal,  and  the  appellee's  costs  of  making  the  motion  for 
costs. 


NEW-YORK  PRACTICE  REPORTS.  112 

Tinker  agfc.  Irvin. 

S.  STEVENS,  relator's  counsel. 
G.  DEAN,  relator's  attorney. 

BEARDSLEY,  Justice.    Ordered,  that  an.  alternative  manda- 
mus issue. 


ELIPHALET  TINKER  and  BENJAMIN  F.  CRAFT  agt.  GUY  C. 

IRVIN. 

A  sheriff's  sale  was  set  aside,  and  newfi.  fa.  allowed  to  issue,  where  a  general 
agent  of  the  receiver  of  the  plaintiffs'  estate,  bid  off  the  premises  at  sheriff 's 
sale  for  the  benefit  of  the  receiver,  on  an  execution  in  favor  of  the  plaintiffs 
against  the  defendant,  whose  premises  were  sold ;  the  agent  having  been  in- 
correctly informed  as  to  prior  incumbrances,  by  the  sheriff,  at  the  day  of  sale, 
on  whom  he  relied  for  information. 

March  Special  Term,  1845. 

MOTION  at  the  last  October  term  to  set  aside  sheriff's  sale 
and  subsequent  proceedings,  and  for  new  execution  on  the  fol- 
lowing facts : 

The  plaintiffs,  on  the  30th  July,  1841,  recovered  a  judg- 
ment against  the  defendant  for  $206.95.  Execution  was  issued 
to  the  sheriff  of  Chautauque  county  August  30th,  following : 
Craft  was  nominal  plaintiff  only ;  Tinker  became  insolvent 
on  or  about  the  23d  day  of  May,  1840,  and  made  an  assignment 
of  all  his  property  for  the  benefit  of  his  creditors.  A  bill  was 
filed,  and  Henry  Keep  was  appointed  receiver  of  the  property 
and  effects,  on  or  about  the  31st  day  of  March,  1842.  The  said 
receiver  took  possession  of  said  property  as  such  receiver,  and 
of  the  said  judgment  and  execution.  Chancey  Tucker  was  ap- 
pointed the  receiver's  agent,  and  took  charge  of  said  judgment 
and  execution  and  had  the  whole  control  of  it ;  said  agent  di- 
rected the  sheriff  to  proceed  on  the  execution  and  close  it  up  by 
sale  of  the  defendant's  property,  if  any  could  be  found,  if  not,  to 
return  it ;  on  the  19th  day  of  August,  1842,  said  sheriff  in- 
formed said  agent  that  the  sale  of  certain  real  estate  of  de- 
fendant's was  to  take  place  on  said  execution  immediately — 


112  NEW-YORK  PRACTICE  REPORTS. 

Tinker;  agt.  Irvin. 

on  that  day,  and  desired  the  agent  to  attend  and  bid  upon  the 
same,  for  the  receiver.  Said  agent  knew  nothing  of  the  sale 
till  so  informed  on  the  day  of  sale ;  when  said  agent  arrived  at 
the  place  of  sale,  which  was  at  Maysville,  in  said  county,  a  few 

rods  from  the  clerk's  office  of  said  county,  where  said 
[*  1 1 3]  agent  was  ^attending  court, the  hour  of  sale  had  passed, 

and  the  sheriff  had  actually  opened  the  sale,  said  agent 
then  inquired  of  the  sheriff  whether  the  property  was  incum- 
bered,  the  sheriff  replied,  the  only  incumbrance  was  a  balance 
due  upon  a  mortgage  to  John  Jacob  Astor,  of  about  $2,000. 
Said  agent  told  the  sheriff  he  wished  to  know  exactly  about  the 
incumbrances  before  bidding,  and  suggested  a  postponement 
of  the  sale  until  the  necessary  examination,  as  to  incumbrances, 
could  be  made;  the  sheriff  replied  that  he  had  made  a  full  ex- 
amination as  to  incumbrances,  and  knew  all  about  it,  and  that 
agent  could  not  get  as  much  information,  as  to  the  incum- 
brances, by  examining  the  records,  as  he  the  sheriff  had ;  for 
the  reason  that  the  records  would  not  show  what  incumbrances 
had  been  paid,  and  that  he,  the  sheriff,  had  obtained  his  in- 
formation by  inquiry  from  the  proper  sources — that  all  the 
incumbrances  had  been  paid  except  the  balance  above  men- 
tioned. Said  sheriff  also  said  to  said  agent  that  said  balance 
would  undoubtedly  be  paid  by  the  defendant,  before  the  time 
of  redemption  on  the  sheriff 's  sale  would  expire;  the  agent 
knew  that  the  land  was  worth  more  than  the  said  balance  and 
the  execution ;  the  receiver  knew  nothing  of  the  property, 
and  the  agent  had  the  sole  direction  of  the  execution,  and  he 
knew  nothing  of  the  incumbrances,  except  what  the  sheriff 
told  him ;  the  sheriff  knew  of  no  other  incumbrances  except 
the  said  mortgage ;  the  said  agent  gave  up  any  further  attempt 
at  postponement,  and  bid  off  the  land  for  the  amount  of  the 
execution,  and  took  the  sheriff's  certificate  to  the  said  receiver. 
Said  agent  supposed  the  land  would  be  redeemed.  At  Oc- 
tober term  of  Chautauque  common  pleas,  the  sheriff  told  said 
agent  that  the  defendant  had  not  redeemed,  and  the  said  agent 
then  learned  for  the  first  time  that  there  was  another  mortgage 
on  said  premises  of  over  $13,000,  prior  to  said  judgment  and 


NEW-YORK  PRACTICE  REPORTS.  113 

The  People  agt.  Judges  of  Essex  Common  Pleas. 

execution,  and  the  land  was  then  advertised  for  sale  on  said 
mortgage,  for  the  4th  day  of  November,  1843.  And  the 
mortgaged  premises  were  not  worth  over  $8,000.  Said  agent 
bid  off  the  land  in  good  faith,  and  as  he  believed,  for  the  best 
interests  of  his  principal.  Irvin  was  a  man  of  property,  and 
said  agent  supposed  for  that  reason  the  land  was  not  incum- 
bered,  and  that  said  defendant  would  redeem ;  and  he  also 
supposed  the  sheriff  knew  all  about  the  property  from  his  hav- 
ing for  some  time  been  sheriff  or  deputy,  and  his  having  done 
business  with  defendant;  said  mortgages  were  recorded  in 
said  clerk's  office,  and  said  premises  were  sold  on  said  mort- 
gages for  $8,000.  Now  unless  said  sale  is  set  aside  the 
judgment  and  execution  will  be  lost.  The  papers 
*for  the  motion  were  served  on  defendant  in  Fenn-  [*114] 
sylvania,  where  he  resides. 

C.  TUCKER,  plaintiffs1  attorney. 

A.  HAZELTINE,  defendant's  attorney. 

NELSON,  Chief  Justice.     Granted  the  motion  on  payment  of 
costs  of  opposing  motion. 


THE  PEOPLE  ex  rel.  ALEXANDER  D.  CLARK  agt.  THE  JUDGES 
OF  ESSEX  COMMON  PLEAS. 

* 

March  Special  Term,  1845. 

MOTION  by  the  relator  on  filing  alternative  mandamus,  &c., 
for  peremptory  mandamus  to  compel  the  defendants  to  try- 
cause. 

E.  PEARSON,  relator's  counsel. 
M.  T.  CLOUTH,  relatorjs  attorney. 
A.  C.  HAND,  defendants'  counsel. 

BEARDSLEY,  Justice.    Denied  the  motion  because  the  alter- 
native writ  was  served  in  vacation,  without  prejudice  or  costs. 
Rule  accordingly. 


114  NEW-YORK  PRACTICE  REPORTS. 

Wilder  agt.  Wheeler. 


GEORGE  G.  WILDER  et  al  agt.  BENJAMIN  WHEELER. 

Under  the  39th  rule,  a  recorder  has  no  power  to  grant  an  order  enlarging  time 
to  serve  papers,  &c.,  upon  which  to  move  to  set  aside  a  report  of  referees,  and 
staying  proceedings,  within  four  days  from  the  signing  and  filing  the  report 
A  circuit  judge  has  no  power  to  grant  such  an  order  after  four  days  from  tho 
signing  and  filing  the  report. 

March  Special  Term,  1845. 

MOTION  by  defendant  to  set  aside  the  judgment  entered  upon 
the  report  of  the  referees  in  this  cause,  or  that  the  defendant 
have  leave  to  move  at  the  next  term,  to  set  aside  the  said 
report  of  referees  made  and  filed  therein. 

This  cause  was  referred  by  stipulation,  to  three  referees, 
who  after  having  heard  the  testimony,  &c.,  therein,  made  their 
re-port  on  the  30th  day  of  January  last,  in  favor  of  the  plain- 
tiffs. On  the  same  day,  30th  January  last,  the  report  was  filed 
and  rule  for  final  judgment  thereon  entered.  And  on  the  31st 
January  last,  judgment  record  therein  was  filed.  On  the  1st 
day  of  February  last,  defendant's  attorney  procured  an  order 
from  A.  B.  Olin,  Esq.,  recorder  of  the  city  of  Troy,  giving 
the  defendant  thirty  days  to  prepare  and  serve  affidavits  and 
papers  for  a  motion  to  set  aside  the  report  of  the  referees,  and 
staying  plaintiff's  proceedings  in  the  meantime ;  a 
[*115]  copy  of  which  order  was  served  on  plaintiff's  *attor- 
neys,  on  the  1st  day  of  February  last.  On  the  5th 
day  of  February  last,  defendant's  attorney  obtained  an  order 
in  this  cause  and  one  other,  from  A.  J.  Parker,  Esq.,  circuit 
judge,  giving  defendant  thirty  days  in  which  to  make  and 
serve  affidavits  and  other  papers  for  a  motion  to  set  aside  the 
report  of  the  referees  in  this  cause,  and  staying  plaintiff's  pro- 
ceedings in  the  meantime.  A  copy  of  said  last  order  was 
served  on  the  plaintiff's  attorneys  on  the  5th  February  last. 
Defendant's  attorney  prepared  the  affidavits  and  papers  for  the 
purpose  of  moving  this  court  to  set  aside  the  report  of  the 
referees  aforesaid ;  and  on  the  24th  February  last,  served  same 
on  plaintiffs  attorneys,  together  with  a  notice  of  motion  for 


NEW-YORK  PRACTICE  REPORTS.  115 

Coffing  agt.  Tripp. 


the  next  May  term  of  this  court.  Defendant's  attorney  gives 
as  an  excuse  for  not  serving  the  affidavit  and  papers  to  set  aside 
tht  report  of  the  referees  within  four  days  from  the  signing 
and  filing  the  same,  that  the  testimony  was  voluminous,  and 
there  was  not  sufficient  time ;  and  he  therefore  procured  the 
first  order,  of  the  recorder,  extending  the  time ;  and,  for 
greater  precaution,  subsequently  obtained  and  served  the 
order  of  the  circuit  judge  as  before  stated. 

S.  STEVENS,  defendants  counsel. 
C.  D.  SHELDON,  defendants  attorney. 
E.  PEARSON,  plaintiffs  counsel. 
PEARSON  &  CHURCH,  plaintiffs  attorneys. 

BEARDSLEY,  Justice.  Held  that  under  the  39th  rule,  both 
orders  were  a  nullity.  The  recorder  had  no  power  to  make 
an  order  for  that  purpose  within  four  days ;  and  after  the  four 
days  had  expired,  the  circuit  judge  had  no  power  to  grant  a 
similar  order ;  but  allowed  the  service  of  defendant's  papers 
for  the  motion  to  set  aside  the  report  to  be  deemed  good  ser- 
vice on  payment  of  $7  costs  of  opposing  this  motion  in  twenty 
days,  and  that  plaintiffs  have  twenty  days  thereafter  to  serve 
counter  affidavits.  Judgment  to  stand  as  security. 

Eule  accordingly. 


JOHN  CHURCHILL  COFFING,  President  of  the  Salisbury  Iron 
Company  agt.  ANTHONY  I.  TRIPP. 

A  plaintiff  will  not  be  allowed  to  amend  his  declaration  substantially  changing 
the  plaintiffs,  after  issue  joined,  and  the  cause  has  been  noticed  for  trial:  his 
proper  course  is  to  discontinue  the  suit,  and  commence  anew. 

March  Special  Term,  1845. 

MOTION  by  plaintiff  for  leave  to  amend  his  declaration  in 
this  cause  in  this  particular,  to  wit :  that  the  name  of  "  John 
Churchill  Coffing,  president  of  the,"  be  stricken  out  of  the 
same. 


116  NEW-YORK  PRACTICE  REPORTS. 

The  People  agt.  The  Board  of  Supervisors  of  the  County  of  "Warren. 

It  appears  that  issue  was  joined  in  this  cause  on  the  6th 
August  last,  and  noticed  for  trial  at  the  Dutchess  cir- 

[*116]  cuit  *for  the  second  Monday  of  October  last :  was  not 
tried  for  want  of  time.  Some  time  in  January  last, 

plaintiff's  attorney  applied  to  defendant's  attorney  for  leave  to 

amend  his  declaration  as  to  the  name  of  the  plaintiff ;  to  which 

defendant's  attorney  refused  to  consent. 

M.  T.  REYNOLDS,  plaintiff's  counsel. 
R.  PECK,  plaintiff's  attorney. 
S.  STEVENS,  defendant's  counsel. 
WILLIAM  ENO,  defendant's  attorney. 

BEARDSLEY,  Justice.  Thought  there  could  no  precedent  be 
found  for  allowing  the  plaintiff  to  amend,  by  substantially 
changing  a  party  to  the  suit,  under  such  circumstances.  The 
proper  way  for  plaintiff  would  be,  to  discontinue  the  suit  and 
commence  anew. 

Motion  denied  with  costs. 


THE  PEOPLE  ex  rel.  LEMON  THOMSON  agt.  THE  BOARD  OF 
SUPERVISORS  OF  THE  COUNTY  OF  WARREN. 

An  alternative  mandamus  will  not  be  allowed,  to  require  the  board  of  supervi- 
sors to  audit  and  allow  a  county  superintendent  of  common  schools,  for  his 
time  in  attending  a  state  convention  of  county  superintendents,  or  county  con- 
vention of  town  superintendents  and  teachers  of  common  schools.  It  is  a 
question  where  the  board  of  supervisors  have  full  jurisdiction. 

March  Special  Term,  1845. 

THIS  was  a  motion  by  the  relator  for  a  mandamus  to  the 
board  of  supervisors  of  Warren  county,  on  the  following  facts : 

It  appears  the  relator,  Thomson,  was  appointed  by  said 
board  of  supervisors,  superintendent  of  common  schools  in 
and  for  said  county  of  Warren,  on  the  16th  November,  1843. 
At  the  regular  meeting  of  the  board  in  November  last,  Thom- 
son presented  his  account  for  services  as  such  superintendent 


NEW-YORK  PRACTICE  REPORTS.  116 

The  People  agt.  The  Board  of  Supervisors  of  the  County  of  Warren. 

rendered  during  the  year  previous.  In  the  account  were  the 
two  following  items,  to  wit :  "  Twelve  days  occupied  in  going 
to,  attending,  and  returning  from  the  state  convention  of 
county  superintendents  of  common  schools,  holden  at  the  city 
of  Eochester  in  the  month  of  May  last,  at  $2  per  day,  $24.00  ; 
two  days  in  attending  a  county  convention  of  town  superin- 
tendents and  teachers  of  common  schools,  holden  at  Warrens- 
burgh  in  the  county  of  Warren,  in  the  month  of  October  last, 
at  $2  per  day,  $4.00."  The  board  of  supervisors  rejected  the 
two  charges,  amounting  to  $28,  as  illegal,  and  refused  to  audit 
and  allow  the  same.  Thomson  states  that  his  actual  disburse- 
ments were  over  $25  ;  and  on  rejection  by  the  board  of  said 
accounts,  he  immediately  wrote  to  the  superintendent  of  com- 
mon schools,  S.  Young,  Esq.,  in  relation  to  them,  who  re- 
turned an  answer  that  he  was  clearly  of  opinion  that  the 
charges  should  be  allowed  by  the  board  of  supervi- 
sors ;  they  were  duties  recommended  *and  approved  [*117] 
by  the  official  instructions  of  the  department :  and 
in  attendance  upon  these  conventions,  he  was  engaged  in  the 
strict  performance  of  the  duties  prescribed  by  law.  At  an 
adjourned  meeting  of  the  board,  held  in  December  last,  Thom- 
son presented  the  letter  from  the  superintendent,  and  renewed 
his  claim ;  which  was  again  rejected  and  disallowed  by  the 
board. 

M.  T.  EEYNOLDS,  counsel. 
H.  E.  WING,  relator's  attorney. 

BEARDSLEY,  Justice.  Thought  this  court  should  not  inter- 
fere ;  it  was  a  question  of  which  the  board  of  supervisors  had 
full  jurisdiction. 

Motion  denied. 


11 Y  NEW-YORK  PRACTICE  REPORTS. 

Elder  agt.  Bogardus. 


CHARLES  H.  ANTHONY  agt.  COLL  IN  DUNBAR. 

A  plaintiff  on  application  to  the  court,  was  permitted  to  issue  a  new  ca.  sa.  otfi. 
fa.  against  defendant ;  after  a  suit  had  been  brought  against  the  sheriff,  for  the 
escape  of  defendant  from  the  jail  limits,  on  the  first  fi.  fa. ;  in  which  suit  the 
sheriff  succeeded. 

March  Special  Term,  1845. 

MOTION  by  plaintiff  at  last  October  term  for  leave  to  issue 
a  new  ca.  sa.  or  ft.  fa.,  in  this  cause,  on  the  following  facts: 

An  execution  was  issued  to  sheriff  of  Rensselaer  about  the 
1st  day  of  November,  1842.  Said  sheriff  arrested  the  defend- 
ant in  that  month,  and  had  him  on  the  jail  liberties ;  on  the 
20th  day  of  June,  1843,  supposing  that  defendant  was  off  the 
limits,  a  suit  was  commenced  against  tlie  sheriff  for  such  es- 
cape ;  which  suit  was  tried  and  the  sheriff  succeeded  on  two 
grounds  only.  1.  That  there  was  no  proof  of  escape  such  as 
would  charge  the  said  sheriff.  2.  That  said  Dunbar  had  re- 
turned to  the  limits  before  suit  brought.  Said  judgment  is  in 
full  force  and  unpaid. 

WILLARD  &  KAYMOND,  plaintiff's  attorneys. 
A.  B.  OLIN,  defendants'  attorney. 

NELSON,  Chief  Justice.  Granted  the  motion  for  a  new  ca. 
sa.  orfi.  fa.  Eule  accordingly. 


EGBERT  ELDER  agt.  MARIA  S.  BOGARDUS,  Executrix,  &c. 

A  circuit  judge  has  no  jurisdiction  hi  making  an  order  for  the  discovery  of  books, 
papers,  &c.,  during  the  session  of  the  supreme  court. 

March  Special  Term,  1845. 

MOTION  by  defendant  to  vacate  or  qualify  an  absolute  order 
requiring  defendant  to  produce  and  deposit  books,  papers, 


NEW-YORK  PRACTICE  REPORTS.  118 

Bell  agt.  Robinson. 

&c.,  for  inspection,  on  a  "^petition  made  by  plaintiff    [*118] 
under  the  statute. 

It  appears  that  an  alternative  order  was  made  in  this  cause 
by  Win.'  Kent,  circuit  judge,  on  the  22d  January,  1845  ;  re- 
quiring defendant  to  deposit  books,  papers,  &c.,  mentioned  in 
the  plaintiff's  petition,  or  show  cause  before  the  circuit  judge, 
&c.  On  the  31st  of  January,  1845,  an  absolute  order  was 
made  by  said  circuit  judge,  making  the  same  requisition  of 
defendant  as  in  the  alternative.  It  was  insisted  by  defend- 
ant's counsel  that  the  circuit  judge  had  no  jurisdiction — this 
court  was  in  session  at  the  date  of  both  orders  ;  and  cited  2  E. 
S.  199,  §  23  ;  18  Wend.  529. 

N.  B.  BLUNT,  defendant's  counsel. 
CHAS.  PAGET,  defendant's  attorney. 
N.  HILL,  JR.,  plaintiff's  counsel. 
McCouN  &  CLARK,  plaintiff's  attorneys. 

BEARDSLEY,  Justice.  The  authorities  are  full  to  the  point, 
that  the  circuit  judge  had  no  jurisdiction.  The  motion  must 
be  granted. 

Decision. — Motion  granted  to  vacate  tibe  order  of  31st  Jan- 
uary, 1845. 


WILLIAM  A.  BELL  agt.  WILLIAM  KOBINSON. 

Under  the  act,  in  session  laws,  1841,  giving  parties  in  causes  leave  to  move  for 
judgment  as  in  case  of  nonsuit,  before  the  circuit  judge  of  the  first  circuit,  where 
the  parties  and  attorneys  all  reside  in  the  city  and  county  of  New- York ;  held, 
that  the  act  does  not  conclude  the  moving  party,  he  may  make  such  motion  at 
special  term. 

March  Special  Term,  1845. 

MOTION  by  defendant  for  judgment  as  in  case  of  nonsuit. 
This  motion  was  ordered  to  stand  over  to  the  next  special  term, 
with  liberty  to  serve  additional  papers. 


118  NEW-YORK  PRACTICE  REPORTS. 

Van  Ness  agt.  Nichols. 

It  appears  by  the  papers  in  this  cause,  that  the  parties  and 
attorneys  in  the  cause  all  reside  in  the  city  and  county  of  New- 
York,  and  the  question  was  raised,  whether  the  defendant  was 
not  bound  to  make  his  motion  before  the  circuit  judge  of  the 
first  circuit  in  such  a  case,  under  the  act  in  session  laws,  1841. 

H.  DRESSER,  defendant's  -counsel. 
A.  G.  EANSOM,  defendant's  attorney. 
MR.  BELL,  plaintiff's  counsel. 
BELL  &  COE,  plaintiff's  attorneys. 

BEARDSLEY,  Justice.  Held,  that  although  the  motion  might 
have  been  made  before  the  circuit  judge,  under  the  act  referred 
to,  yet  it  did  not  conclude  the  moving  party  ;  he  might  make 
it  at  the  special  term. 


[*119]    JOHN  VAN  NESS,  JR.,  agt.  HENRY  NICHOLS,  HORACE 
BATES  and  JAMES  MAY. 

A  motion  for  -a  perpetual  stay  of  execution  on  the  ground  the  judgment  has 
been  paid,  will  be  denied  with  costs,  where  the  grounds  are  fully  met  or  ex- 
plained by  the  opposing  papers. 

March  Special  Term,  1845. 

MOTION  by  S.  J.  Penniman  for  a  perpetual  stay  of  the  exe- 
cution issued  to  the  sheriff  of  the  county  of  "Wayne,  upon  a 
judgment  in  this  cause  recovered  October  21,  1839. 

Penniman  swears,  that  Jie  recovered  a  judgment  in  this 
court  against  Nichols  and  Sates,  two  of  the  defendants  in  this 
suit,  for  $346.05,  on  the  15th  November,  1839.  Execution 
was  issued  thereon  26th  November,  1842,  and  delivered  to 
the  sheriff  of  Wayne  county,  who  levied  on  and  sold  three 
lots  of  land  in  the  village  of  Palmyra,  which  belonged  to  de- 
fendant Nichols,  and  they  were  purchased  by  said  Peoniman. 
The  time  of  redemption  has  expired  and  no  one  has  redeemed. 
About  three  weeks  since,  Penniman  learned  that  the  present 


NEW-YORK  PRACTICE  REPORTS.  119 

Yan  Ness  agt.  Nichols. 

sheriff  of  Wayne  county  had  advertised  for  sale  the  said  lots 
above  mentioned  (purchased  by  him  as  aforesaid),  by  virtue 
of  an  execution  in  this  cause,  issued  on  the  judgment  which 
was  recovered  21st  October,  1839.  The  plaintiff  in  this  cause 
informed  said  Penniman  that  Nichols,  the  defendant,  had  paid 
him  a  large  sum  on  the  judgment  soon  after  it  was  recovered, 
and  subsequently  the  defendant  James  May  paid  the  balance 
of  the  judgment,  and  to  whom  plaintiff  gave  a  satisfaction 
thereof  in  full.  That  some  time  in  the  latter  part  of  the  year 
1844,  plaintiff  sold  the  judgment  in  this  cause  to  Geo.  W. 
Cuyler,  Esq.,  for  $20.  Henry  Nichols,  one  of  the  defendants, 
swears  that  the  draft  upon  which  this  judgment  was  obtained, 
was  given  by  him,  as  a  loan  to  J.  B.  Parsons  &  Co.,  of  whose 
firm  James  May,  one  of  the  above-named  defendants,  was  a 
member,  with  the  understanding  that  said  J.  B.  Parsons  & 
Co.  should  pay  the  same,  before  the  draft  became  due.  Par- 
sons &  Co.  failed,  and  on  the  1st  November,  1839,  soon  after 
the  judgment  in  this  cause  was  recovered,  Nichols  entered 
into  a  written  agreement  with  the  plaintiff  to  pay  the  amount 
of  the  judgment  by  instalments,  and  if  the  amount  was  col- 
lected by  the  plaintiff  out  of  either  of  the  other  defendants, 
Nichols  should  be  credited  the  amount  collected.  Nichols 
states  that  he  paid  to  plaintiff  on  the  agreement  the  whole 
amount  except  about  $100.  In  opposition  to  the  motion,  Yan 
Ness,  the  plaintiff,  swears,  that  he  never  said  to  Penniman 
that  he  had  executed  and  delivered  to  James  May  a  satisfac- 
tion in  full  of  the  judgment  in  this  cause  ;  that  he  never  ex- 
ecuted and  delivered  to  James  May  or  any  other  person  a 
satisfaction  of  said  judgment.  On  or  about  the  6th 
June,  1842,  he.  in  consideration  of  $30  *received  [*120] 
from  said  May,  executed  and  delivered  to  him  a  re- 
lease of  his  individual  liability  on  said  judgment  under  the 
statute  as  a  joint  partner.  On  the  1st  November,  1839.  he 
made  an  arrangement  with  said  Nichols  as  above  stated,  that 
he  took  property  of  said  Nichols  under  said  agreement  for 
$150,  which  did  not  turn  out  to  be  worth  over  $90 ;  he  was 
induced  to  take  the  property  at  that  rate  in  consideration  that 


120  NEW-YORK  PRACTICE  REPORTS. 

Hugenin  agt.  Granger. 

Nichols  would  pay  the  balance  in  cash.  He  afterwards  re- 
ceived from  Nichols  cheese  and  pork  of  the  value  of  about 
$26.50,  which  is  all  he  ever  received  from  said  Nichols;  that  he 
sold  the  judgment  to  Geo.  W.  Cuyler  about  the  26th  November, 
1844,  with  the  consent  and  advice  of  said  Nichols.  Since  this 
motion  has  been  noticed,  plaintiff  states  he  called  on  said 
Nichols,  who  was  unable  to  show  any  evidence  of  any  pay- 
ments beyond  the  amount  he  (plaintiff)  has  stated.  A  copy 
of  the  execution  issued  on  this  judgment  was  produced,  and 
by  the  levy  indorsed,  the  sheriff  is  directed  to  collect  $353.30 
with  interest  from  the  21st  October,  1839,  deducting  $150 
paid  by  the  defendant  Nichols,  1st  May,  1840,  and  $30  paid 
by  defendant  James  May,  6th  June,  1842. 

IRA  HARRIS,  Penniman's  counsel. 
HARRIS  &  SHEPARD,  attorneys  for  £  J.  P. 
K.  "W.  PECKHAM,  Cuyler 's  counsel. 
GEO.  W.  CUYLER,  attorney  in  pro.  per. 

BEARDSLEY,  Justice.  The  grounds  on  which  the  motion 
was  made  are  fully  met  by  the  opposing  affidavits,  and  dis- 
proved or  explained  so  as  to  show  that  they  are  without  any 
substantial  foundation.  The  arrangement  with  Nichols  was 
not  performed  on  his  part,  and,  therefore  has  not  cancelled  the 
judgment.  As  far  as  I  see,  the  judgment  is  in  force  for  the 
amount  directed  to  be  made  by  the  execution,  and  the 
motion  must  be  denied  with  costs. 

Eule  accordingly. 


PETER  D.  HUGENIN  agt.  HENRY  F.  GRANGER. 

A  delay  of  ten  months  from  the  entry  of  judgment  as  in  case  of  nonsuit,  is  fatal 
to  plaintiff  who  seeks  on  motion  to  be  let  in  to  try  the  cause  on  the  merits. 

March  Special  Term,  1845. 

MOTION  by  plaintiff  to  set  aside  the  judgment,  as  in  case 


NEW-YORK  PRACTICE  REPORTS.  120 

Hugenin  agt.  Granger. 

of  nonsuit,  in  this  cause,  and  all  proceedings  on  the  part  of 
the  defendant  subsequent  to  a  stipulation  of  February  4, 
1844. 

This  action  was  commenced  in  assumpsit,  29th  March, 
1839  ;  venue  laid  in  Albany  county  ;  issue  joined  30th  April, 
1830.  The  cause  was  several  times  noticed  for  trial  by  plain- 
tiff's attorneys,  for  the  circuit  courts  held  in  and  for 
the  county  of  *Albany,  but  not  brought  on  to  trial,  for  [*121] 
the  reason  of  the  absence  of  material  witnesses  for 
plaintiff,  and  sometimes  put  over  by  consent  and  arrangement 
with  defendant's  attorneys,  and  for  the  reason  of  the  delay  in 
getting  return  to  a  commission  issued  by  plaintiff  to  take  the 
testimony  of  a  witness  residing  in  Illinois.  On  the  4th  Feb- 
ruary, 1844  (the  cause  then  never  having  been  brought  to  trial), 
plaintiff's  attorneys  gave  to  defendant's  attorneys  a  stipulation 
to  try  the  cause  at  the  April  circuit,  1844,  or  of  default  thereof 
defendant's  attorneys  might  enter  up  judgment  as  in  case  of 
nonsuit.  The  cause  was  not  brought  to  trial  at  said  April 
circuit,  plaintiff's  attorneys  not  having  received  a  return  to 
said  commission ;  and  in  April,  1844,  after  the  circuit,  defend- 
ant's attorneys  entered  up  judgment,  as  in  case  of  nonsuit,  in 
pursuance  of  the  stipulation  aforesaid,  and  on  the  15th  April 
served  on  plaintiff's  attorneys  a  copy  of  the  bill  of  costs,  with 
notice  of  retaxation.  In  December,  1844,  plaintiff's  attorneys 
received  the  commission  and  testimony  therewith  from  Illi- 
nois, and  immediately  applied  to  defendant's  attorneys  to 
waive  the  judgment  and  permit  them  to  try  the  cause,  which 
the  defendant's  attorneys  declined  doing.  Plaintiff  states  the 
testimony  is  important  and  material  for  him  on  the  trial  of 
the  cause ;  papers  for  this  motion  were  served  10th  February 
last. 

S.  M.  WOODRUFF,  plaintiff's  counsel. 
WOODRUFF  &  HAWLEY,  plaintiff's  attorneys. 
P.  CAGGER,  defendants  counsel. 
CAGGER  &  STEVENS,  defendants  attorneys. 
YOL.  I.  12 


121  NEW-YORK  PRACTICE  REPORTS. 

Kennedy  agt.  Newsom. 

BEARDSLEY,  Justice.  Judgment  as  in  case  of  nonsuit  was 
perfected  in  April,  1844,  of  which  the  plaintiff's  attorneys 
then  had  notice.  They  took  no  step  to  get  rid  of  that  judg- 
ment until  February,  1845 ;  this  delay,  to  say  nothing  of 
other  difficulties  in  the  way  of  the  motion,  is  fatal. 

Motion  denied,  with  costs. 


LINU  P.  KENNEDY  agt.  JOSEPH  NEWSOM. 

A  certiorari  brought  to  remove  a  cause  from  the  common  pleas  to  this  court  must 
be  filed  eight  days  before  the  first  term  at  which  the  issue  could  be  tried,  after 
issue  joined,  otherwise  defendant  must  pay  costs. 

March  Special  Term,  1845. 

MOTION  by  plaintiff  to  quash  the  certiorari  issued  in  this 
cause. 

The  action  is  covenant;  brought  in  the  common  pleas. 
Issue  joined  October  20,  1844,  in  time  to  have  been  noticed 
for  the  last  December  term  of  the  Steuben  common  pleas.  By 
a  written  stipulation  the  cause  was  referred  to  a  sole  referee,  on 
the  7th  December  last.  The  referee  appointed  the  19th  of  Feb- 
ruary last  for  a  hearing.  On  the  24th  January  last 
[*122]  *plaintiff's  attorney  served  defendant's  attorney  with 
notice  of  said  hearing.  About  1st  February  last, 
notice  was  served  on  plaintiffs  attorney  by  defendant's  attor- 
ney that  the  cause  was  removed  by  certiorari  into  this  court. 
Costs  had  been  made  in  noticing  and  preparing  for  hearing, 
before  notice  of  the  certiorari  was  served,  which  had  not  been 
paid  by  defendant,  or  offered. 

WM.  M.  HAWLEY,  plaintiffs  counsel  and  attorney. 
O.  ALLEN,  defendant's  counsel. 
J.  K.  HALE,  defendant's  attorney. 

BEARDSLEY,  Justice.  Decided  the  motion  upon  the  case  in 
19  Wend.  647,  which  is  precisely  parallel.  That  a  certiorari 


NEW-YORK  PRACTICE  REPORTS.  122 

Smith  agt.  Skinner. 

must  be  filed  eight  days  before  the  first  time  at  which  the  issue 
could  be  tried,  after  issue  joined  ;   otherwise  defendant  must 
pay  all  the  costs  incurred  in  preparing  for  trial  or  hearing. 
Motion  granted,  with  costs. 


SHEPARD  GARBUTT  agt.  LESTER  BRADNER. 

In  a  common  action  of  assumpsit,  where  the  defendant  swears  to  seventy-eight 
witnesses  as  material  to  his  defence,  on  motion  to  change  the  venue ;  it  will 
be  considered  a  fraud  upon  the  court,  unless  the  nature  of  the  action  is  fully 
explained,  to  satisfy  the  court  that  the  number  of  witnesses  are  necessary. 

March  Special  Term,  1845. 

MOTION  by  defendant  to  change  the  venue. 

The  action  is  assumpsit.  Defendant  swears  to  the  mate- 
teriality  in  his  defence  of  seventy-eight  witnesses,  residing  in  the 
county  to  which  he  proposes  to  change  the  venue. 

BEARDSLEY,  Justice.  Said  he  should  order  the  motion  to 
stand  over  to  the  next  special  term,  that  the  defendant  might 
show  the  nature  of  the  action,  in  order  to  satisfy  the  court 
that  he  required  the  number  of  witnesses  which  he  had  sworn 
to.  Unless  an  explanation  was  made,  he  should  consider  it  a 
fraud  upon  the  court,  in  swearing  to  the  materiality  of  sev- 
enty-eight witnesses  on  a  defence  in  a  common  action  of  as- 
sumpsit. 

Rule  accordingly. 


JAMES  A.  SMITH  agt.  EDWIN  SKINNER  and  SARDIS  ALLEN. 

A  plaintiff  will  be  permitted  to  discontinue,  without  costs,  where  it  appears  he 
had  no  notice  of  the  defendant's  application  or  discharge  in  bankruptcy,  and 
was  ignorant  thereof  until  after  suit  was  commenced. 

March  Special  Term,  1845. 

MOTION  by  plaintiff  for  liberty  to  discontinue  this  suit, 
without  costs. 


123  NEW-YORK  PRACTICE  REPORTS. 

Holmes  agt.  Poeey. 

[*123]  *Suit  brought  to  recover  the  amount  of  a  bill  of 
oil  sold  to  defendants  in  1842.  In  the  fall  of  1844, 
plaintiff  commenced  this  suit.  The  defendants  pleaded  their 
bankrupt  discharge  under  the  United  States  bankrupt  law, 
passed  1841.  Plaintiff  had  never  received  any  notice  of  de- 
fendants' application  for  a  dischage  in  bankruptcy,  and  never 
had  any  information  they  had  been  discharged,  until  after 
they  had  pleaded  in  this  suit. 

F.  S.  KlNNEY,  plaintiff's  counsel. 
KINNEY  &  TOWNSEND,  plaintiff's  attorneys. 
N.  HILL.  JR.,  defendants'  counsel. 
N.  BENNETT,  defendants'  attorney. 

BEARDSLEY,  Justice.  Granted  the  motion,  on  the  ground 
that  plaintiff  had  not  received  any  notice  of  defendants'  ap- 
plication or  discharge  in  bankruptcy,  and  was  ignorant  thereof 
until  after  the  suit  was  commenced. 

Motion  granted. 


ANDREW  JORDAN  and  LEWIS  W.  HOLMES  agt.  SEBASTIAN 

K.  POSEY. 

A  warrant  of  attorney  omitted  by  accident  to  be  filed  with  the  judgment  record, 
which  was  entered  up  on  bond  and  warrant  of  attorney,  may  be  filed  nunc 
pro  time,  as  of  the  day  judgment  was  filed  and  docketed.  A  stipulation  in  a 
warrant  of  attorney,  signed  by  defendant,  that  an  execution  may  issue  imme- 
diately and  be  made  returnable  forthwith,  is  conclusive  upon  the  defendant, 
where  the  execution  is  made  returnable  in  twenty  days. 

March  Special  Term,  1845. 

MOTION  by  defendant  to  vacate  and  set  aside  the  judgment 
and  execution  in  this  cause ;  or  in  case  that  is  not  granted,  that 
the  amount  directed  to  be  levied  by  said  execution  be  reduced 
$490.00. 

From  the  defendant's  affidavit  it  appears  the  parties  in  this 
cause  are  merchants,  and  reside  in  the  city  of  New- York. 


NEW-YORK  PRACTICE  REPORTS.  123 

Holmes  agt.  Posey. 

The  defendant  in  October  last  for  the  first  purchased  a  bill  of 
goods  of  plaintiffs,  having  first  been  solicited  by  one  of  the 
plaintiffs'  clerks  (who  was  an  acquaintance  of  defendant's) ; 
that  subsequently,  during  the  months  of  October  and  Novem- 
ber, he  purchased  of  /plaintiffs  five  more  bills  of  goods, 
amounting  in  all  to  over  $700.  Defendant  supposed  he  pur- 
chased all  except  the  first  bill  on  ninety  days'  credit ;  the  first 
was  sixty  days.  Shortly  after  the  23d  January  last,  defend- 
ant and  Jordan,  one  of  the  plaintiffs,  had  a  conversation  about 
their  matters,  when  Jordan  proposed  to  defendant  to  give 
plaintiffs  a  guaranty  (as  defendant  understood),  and  they 
would  sell  him  more  goods,  that  he  might  increase  his  stock 
and  do  a  better  business ;  that  they  would  sell  him  cheaper 
than  he  could  buy  anywhere  else :  and  on  the  27th  January 
last  defendant  called  at  plaintiffs'  store,  when  Jordan 
handed  defendant  *two  papers  to  sign,  saying  they  [*124] 
were  the  guaranty  (as  the  defendant  understood). 
Jordan  read  a  part  of  the  papers  to  defendant,  which  stated 
it  was  to  secure  the  sum  of  $589  due,  and  such  further  sums 
as  should  become  due  to  plaintiffs.  Defendant  did  not  read 
the  papers,  but  signed  them  upon  the  representation  of  said 
Jordan  that  it  was  a  guaranty  to  secure  them  up  to  the 
amount  of  $2,000 ;  and  if  his  account  got  up  to  $2,000,  addi- 
tional papers  would  be  required.  Defendant,  on  the  same  day 
and  day  following,  purchased  two  additional  bills  of  goods, 
amounting  to  about  $116,  on  the  same  length  of  credit  as 
before.  On  the  31st  January  last,  one  of  the  deputy  sheriffs 
of  the  city  and  county  of  New- York  levied  upon  defendant's 
stock  of  goods,  under  an  execution  in  favor  of  plaintiffs,  and 
still  retains  possession  of  them.  Defendant  learned  that  a 
judgment  was  docketed  in  this  cause  on  the  31st  day  of  Jan- 
uary last,  for  $2,000  debt  and  $14.00  damages  and  costs ;  that 
on  the  same  day  a  writ  of  fieri  facias  was  issued  and  delivered 
to  the  sheriff,  by  which  he  was  directed  to  levy  $719.49,  be- 
sides interest  and  fees.  Defendant  alleges  that  he  was  igno- 
rant of  the  nature  of  the  papers  which  he  gave  plaintiffs,  and 
was  not  aware  that  they  authorized  the  entering  up  of  a  juc1^ 


124  NEW-YORK  PRACTICE  REPORTS. 

Holmes  agt  Posey. 

ment  and  the  issuing  of  an  execution  against  him;  Defend- 
ant also  alleges  that  the  credit  for  some  of  the  bills  had  not 
expired  at  the  time  of  such  levy.  That  the  papers  signed  by 
defendant,  and  called  by  plaintiffs  a  guaranty,  were  so  signed 
upon  the  express  understanding  and  agreement  on  the  part 
of  plaintiffs  that  they  were  to  go  on  and  furnish  defendant  with, 
goods  upon  credit,  to  such  amount  as  he  should  require,  not 
exceeding  $2,000.  That  the  judgment  has  been  procured  by 
fraud  and  misrepresentation,  and  the  execution  issued  in  vio- 
lation of  good  faith.  Smith  Barker,  the  attorney  for  defend- 
ant, states  in  his  affidavit  that  he  has  examined  the  record  of 
judgment  in  this  cause,  and  it  appears  it  was  docketed  on  the 
31st  January,  1845,  upon  a  bond  executed  by  the  defendant 
to  the  plaintiffs,  bearing  date  January  27th,  1845,  in  the  penal 
sum  of  $2,000,  conditioned  for  the  payment  of  $589,  and  such 
other  sums  as  may  become  due.  That  there  is  no  warrant  of 
attorney  filed  with  said  record.  Ttiat  on  examination  of  the 
writ  of  fi.  fa.  issued  in  this  cause,  the  name  of  A.  Warner  is 
signed  thereto  as  clerk  of  this  court :  no  other  name  appears 
on  said  writ  as  clerk.  That  on  examination,  he  finds  there, 
is  no  transcript  of  the  judgment  filed  with  the  clerk  of  the 
city  and  county  of  New- York.  Defendant  Posey  swears  in 
addition,  that  after  the  order  to  stay  proceedings  under 
the  writ  of  fi.  fa.  in  this  cause  was  granted ;  and  before 
the  service  of  the  notice  of  this  motion,  plaintiffs' 
[*125]  ^attorney  countermanded  said  writ  and  issued  an- 
other fi.fa.,  by  virtue  of  which  the  sheriff  has  levied 
upon  the  same  property.  By  the  copy  annexed  of  the  second 
fi.fa.  it  appears  that  it  is  made  returnable  in  twenty  days  from 
the  receipt  thereof  by  the  sheriff,  and  is  signed  with  the  names 
of  the  clerks  of  this  court.  William  J.  Masterton,  of  the  firm 
of  Bates  &  Masterton,  in  said  city  of  New  York,  in  an  affidavit 
made  by  him,  for  another  motion  in  his  behalf,  states  that 
Bates  &  Masterton  recovered  a  judgment  in  this  court  against 
the  above  defendant  for  $1,092  debt,  and  $17.25  damages  and 
costs,  on  the  6th  February  last ;  they  issued  a  writ  of  fi.  fat 
same  day  and  delivered  it  to  the  sheriff  of  the  city  and  county 


NEW-YORK  PRACTICE  REPORTS.  125 

Jordan  agt.  Posey. 

of  New-York ;  by  said  writ  he  was  directed  to  levy  the  sum 
of  $557.25.  He  has  been  informed  that  shortly  prior  to  the 
delivery  of  said  fi.  fa.  to  the  sheriff  and  on  the  same  day,  a 
writ  of  fi.  fa.  was  delivered  to  the  sheriff  in  this  cause  ;  by 
virtue  of  said  writ  of  fi.  fa.  a  stock  of  dry  goods  belonging  to 
the  defendant,  valued  at  about  $800  has  been  levied  upon, 
which  amount,  if  applied  on  the  fi.fa.  in  this  cause,  will  be 
the  means  of  a  loss  to  Bates  &  Masterton  of  their  debt.  Mas- 
terton  alleges  as  grounds  for  this  motion  the  same  facts  in  re- 
gard to  the  judgment  and  execution  in  this  cause  as  is  stated 
in  the  affidavits  used  by  defendant  on  his  motion  above  men- 
tioned, to  wit,  that  there  is  no  warrant  of  attorney  filed  with 
the  judgment  record,  authorizing  the  entry  of  said  judgment, 
or  has  yet  been  filed ;  and  that  the  fi.  fa.  issued  upon  said 
judgment  is  made  returnable  in  twenty  days,  and  that  the 
judgment  was  obtained  by  false  and  fraudulent  representations. 
Bates  &  Masterton  by  Smith  Barker  their  attorney  move  to 
vacate  and  set  aside  thefi.fa.  in  this  cause;  and  in  case  that 
is  not  granted,  then,  that  the  sheriff  be  directed  to  satisfy  their 
execution  first  out  of  the  defendant's  property.  And  they 
gave  plaintiffs  notice  they  should  read  the  defendant's  moving 
papers  in  addition,  in  support  of  their  motion.  Jordan  & 
Holmes,  the  plaintiffs  in  the  above  cause,  first  move  for  leave 
to  file  the  warrant  of  attorney  in  this  cause,  as  of  the  day 
judgment  was  entered  nuncpro  tune.  On  an  affidavit  of  Jared 
Sparks,  who  states  that  he  is  an  attorney  at  law,  and  is  in  the 
office  of  W.  W.  Campbell,  Esq.,  the  attorney  for  plaintiffs,  he 
on  behalf  of  plaintiffs'  attorney  on  the  31st  January  last,  en- 
tered up  a  judgment  on  bond  and  warrant  of  attorney  against 
the  above  defendant,  and  accidentally  omitted  to  file  the  war- 
rant of  attorney  in  this  cause  ;  he  did  not  discover  the  omis- 
sion until  a  few  days  after  judgment  was  entered.  Plaintiffs 
cited  2  R  S.  p.  344,  §  7 ;  3  Cow.  39 ;  2  Cow.  410;  14  T.  R. 
219;  3J.R  526;  Clerke's  Digest  of  Reports,  94,  5  andG; 
1  R.  Laws,  118,  §  6,  416,  §  3  ;  2  R.  S.  283,  §  10,  sub. 
1  *and  2.  And  submits  that  under  these  authorities  [*126] 
the  amendment  should  be  allowed,  and  the  judgment 


126  NEW-YORK  PRACTICE  REPORTS. 

Jordan  agt.  Posey. 

should  not  be  disturbed,  and  a  priority  to  later  judgment  cred- 
itors given,  unless  the  judgment  was  procured  by  fraud.  On 
that  point  the  plaintiffs  produce  an  affidavit  of  Andrew  Jordan, 
one  of  the  plaintiffs,  who  states,  that  the  several  bills  of  goods 
were  not  sold  on  a  credit  of  ninety  days ;  no  time  of  credit  was 
mentioned  in  relation  to  any,  except  the  bills  of  October  8th 
and  10th,  which  were  sold  on  a  credit  of  sixty  days ;  no  time 
was  mentioned  in  relation  to  the  others,  but  plaintiffs  sup- 
posed the  credit  would  in  no  case  extend  beyond  sixty  days. 
At  the  times  of  the  several  sales,  the  defendant  represented 
himself  as  being  solvent,  that  his  stock  and  money  were  fully 
adequate  to  meet  all  his  liabilities.  Some  time  in  January  last 
defendant  was  desirous  to  enlarge  his  stock,  and  plaintiffs  were 
disposed  to  aid  him,  if  they  could  be  secured  for  the  past  and 
the  future  sums,  he  might  become  indebted,  and  would  sell 
him  goods  at  a  small  profit,  provided  they  were  so  secured. 
It  was  then  agreed  that  plaintiffs  should  have  the  necessary 
papers  prepared,  which  was  done,  to  wit,  a  bond  in  the  penal 
sum  of  $2,000,  conditioned  for  the  sum  of  $589,  and  for  such 
other  sums  as  might  become  due,  which  was  accompanied  with 
a  warrant  of  attorney  in  due  form,  authorizing  in  addition  to 
the  usual  authority,  that  an  execution  might  be  issued  and  re- 
turned forthwith.  Plaintiffs  submitted  the  papers  to  defend- 
ant, read  the  bond  to  him,  and  fully  and  particularly  explained 
the  nature  and  object  of  the  warrant  of  attorney ;  defendant 
then  signed  them,  after  stating  that  he  perfectly  understood 
them.  Plaintiff  denies  using  the  word  "  guaranty  "  at  all  in 
conversation  with  defendant  about  security.  It  was  partic- 
ularly stated  to  defendant  that  the  object  of  the  bond  was  to 
give  plaintiffs  a  security  for  present  and  future  indebtedness. 
Defendant  observed  to  plaintiff  at  the  time  the  papers  were 
executed,  he  hoped  plaintiffs  would  not  close  him  up  immedi- 
ately ;  plaintiff  in  reply  stated,  that  from  defendant's  repre- 
sentations he  did  not  suppose  it  would  be  necessary,  otherwise, 
he  would  have  nothing  to  do  with  it.  Defendant  understood 
and  consented  the  bills  should  be  due  at  any  time  after  de- 
livery, and  that  plaintiffs  had  a  right  to  close  up  the  judgment 


NEW-YORK  PRACTICE  REPORTS.  126 

Jordan  agt.  Posey. 

as  their  security.  Two  other  bills  of  goods  were  sold  to  de- 
fendant after  the  security  was  taken.  Soon  after  the  delivery 
thereof  plaintiffs  ascertained  from  examination  that  defendant's 
stock  and  means  of  payment  were  insufficient  to  pay  his  lia- 
bilities already  incurred,  by  several  hundred  dollars.  In  con- 
sequence of  defendant's  misrepresentation  plaintiffs  became 
alarmed  for  the  safety  of  their  claim,  and  on  the  31st  January 
last,  had  judgment  entered,  execution  issued  and 
levied  as  *before  stated.  Plaintiff  has  been  informed  [*127] 
that  the  amount  of  property  levied  upon,  is  estimated 
at  about  $1,000,  and  the  amount  of  defendant's  indebtedness 
is  over  $2,300.  Defendant  on  the  6th  February  last  executed 
another  bond  and  warrant  of  attorney  to  Bates  &  Masterton, 
and  judgment  was  entered  and  execution  issued  as  before 
mentioned,  with  a  full  knowledge  of  the  proceedings  of  plain- 
tiffs. Jordan's  affidavit  is  sustained  in  all  the  material  facts, 
by  the  affidavits  of  three  different  individuals.  A  copy  of  the 
warrant  of  attorney  is  annexed  to  plaintiffs'  papers  by  which 
it  appears  that  there  is  a  clause  inserted  authorizing  the  issu- 
ing of  an  execution  immediately  after  entering  judgment,  and 
that  the  same  be  made  returnable  forthwith. 

P.  GANSEVOORT,  counsel  for  defendant  and  for  Bates  & 

Masterton. 
SMITH  BARKER,  attorney  for  defendant  and  for  Bates  & 

Masterton. 
W.  "W.  CAMPBELL,  plaintiffs  counsel  and  attorney. 

BEARDSLEY,  Justice.  Had  no  doubt  about  allowing  the 
warrant  of  attorney  to  be  filed  nunc  pro  tune,  the  authorities 
are  full  on  that  point ;  his  only  hesitation  was,  as  to  the  re- 
turn of  the  execution  in  twenty  days ;  but  on  examining  the 
copy  of  the  warrant  of  attorney  produced,  it  appeared  that  the 
stipulation  therein,  signed  by  defendant,  was  full  and  suffi- 
cient on  that  point ;  it  allowed  the  execution  to  be  issued  im- 
mediately after  entering  judgment,  and  that  the  same  be  made 
returnable  forthwith.  The  question  of  fraud  is  fully  met  and 
explained  by  the  opposing  affidavits. 


127  NEW-YORK  PRACTICE  REPORTS. 

Hay  agt.  Fowler. 

Decision. — Defendant's  motion  denied  without  costs.  Bates 
&  Masterton's  motion  denied  without  costs;  and  plaintiffs' 
motion  granted  without  costs. 

Eules  accordingly. 


JAMES  HAY  agt.  JAMES  FOWLER,  Survivor  of  James  Fowler 
and  James  E.  E.  Fowler. 

An  execution  issued  after  the  death  of  a  party,  without  any  change  in  the  orig- 
inal title,  and  tested  previous  to  his  death ;  held  regular. 

March  Special  Term,  1845. 

MOTION  by  plaintiff  to  set  aside  the  execution  issued  in  this 
cause,  and  all  subsequent  proceedings  on  the  part  of  defend- 
ant for  irregularity,  the  execution  having  been  issued  since 
the  death  of  the  defendant. 

Plaintiff's  papers  show,  that  this  was  an  action  of  covenant 
on  a  lease  or  agreement  under  seal.  The  cause  came 
[*128]  on  to  be  tried  at  a  circuit  some  *months  since  in 
New-York  city.  A  nonsuit  was  granted  on  grounds 
not  involving  the  merits  of  the  cause.  Defendant  afterwards 
entered  up  judgment  for  his  taxed  costs.  Subsequently  he 
brought  an  action  on  that  judgment  for  said  costs ;  this  action 
has  abated  by  his  decease,  which  occurred  in  December  last. 
On  the  4th  of  January  last,  defendant's  attorney  issued  an 
execution  in  this  suit  entitled  as  if  the  said  defendant  were 
still  surviving ;  no  proceedings  in  this  suit  having  been  had 
since  the  decease  of  said  Fowler,  except  the  issuing  of  such 
execution.  Elisha  Morrill,  the  attorney  for  above  defendants, 
states  in  his  affidavit,  that  judgment  for  costs  against  plaintiff 
was  entered  up  in  this  cause  for  $75.43  on  the  23d  July  last. 
On  the  10th  December  last,  the  defendant  died.  On  the  4th 
of  January  last,  and  prior  to  the  commencement  of  the  Janu- 
ary term  an  execution  was  issued  on  said  judgment,  tested  on 
the  third  Monday  of  October,  1844,  returnable  in  sixty  days. 


NEW-YORK  PEACTICE  REPORTS.  128 

Clarke  agt.  Gray. 

The  entire  amount  of  said  costs  belongs  to  the  attorney.    The 
attorney  for  defendant  cites  1  Cow.  33,  34,  178  and  741 ;  4  Cow. 
423 ;  10  Wend.  206;  2  Tidd,  915  ;  9  Wend.  53  and  452;  2  Cow. 
Treat.  1042. 

N.  B.  BLUNT,  plaintiff's  counsel 
JOHJST  N.  STONE,  plaintiff's  attorney. 
H.  P.  BARBER,  defendant's  counsel. 
ELISHA  MORRILL,  defendant's  attorney. 

BEARDSLEY,  Justice.  The  law  appears  to  be  well  settled 
that  an  execution  tested  before  the  death  of  the  party,  although 
issued  afterwards,  is  regular.  Here  the  defendant  died  in 
vacation  of  October  term,  and  execution  was  issued  before 
January  term,  and  tested  of  October  term,  which  was  prior  to 
his  death.  It  must  be  held  regular. 

Decision. — Motion  denied  with  costs. 


JOHN  CLARKE  agt.  GEORGE  I.  GRAY  and  five  others. 

An  attorney  who  is  employed  by  one  defendant  to  appear  for  several  defendants 
in  a  cause,  and  who  is  recognized  as  the  attorney  for  all  the  defendants,  and 
gives  a  cognovit  as  attorney  for  all  the  defendants  therein  on  the  settlement  of 
the  cause ;  held  that  defendants  are  all  bound  by  it. 

March  Special  Term,  1845. 

MOTION  by  Daniel  Babcock,  James  Cosgrove,  Albert  H. 
Davis  and  Josiah  Smith,  four  of  the  defendants  above  named, 
to  set  aside  the  cognovit  in  this  cause,  and  all  subsequent  pro- 
ceedings ;  and  that  the  defendants,  except  Gray  and  Curtis,  be 
permitted  to  come  in  and  defend. 

This  is  an  action  of  trover,  commenced  by  capias,  on  which 
all  the  defendants  were  held  to  bail ;  the  suit  was  commenced 
August  12, 1843.  Gray  (who  appears  to  be  the  principal  de- 


129  NEW-YORK  PRACTICE  REPORTS. 

Clarke,  v.  Gray 

fendant  in  the  cause)  swears  that  after  the  suit  was 
[*129]  *commenced  he  employed  B.  Bagley,  Esq.,  as  his 

counsel  to  defend  this  suit,  and  exhibited  to  his  coun- 
sel the  capias  and  told  him  he  was  not  authorized  to  employ 
counsel  for  the  other  defendants,  that  he  did  not  intend  to, 
nor  did  he  employ  said  Bagley  for  any  other  person  except 
himself;  that  he  should  have  to  defend  the  cause  himself. 
The  cause  was  noticed  for  trial  at  the  June  Jefferson  circuit, 
1844.  Gray  and  the  other  defendants  were  in  attendance ; 
the  cause  was  called  on  the  second  day  of  the  circuit,  and 
Bagley  informed  the  judge  there  was  a  probability  of  a  settle- 
ment of  the  cause,  and  it  was  passed :  soon  afterwards  Bagley 
told  Gray  the  plaintiff  proposed  to  settle  said  cause ;  Gray  re- 
plied he  would  not  settle  it.  The  next  day  the  cause  was 
again  called,  and  the  plaintiff  informed  the  judge  that  there 
was  a  prospect  of  its  being  settled,  and  it  was  again  passed ; 
thereupon,  Bagley  requested  Gray  to  go  into  one  of  the  jury 
rooms  with  him ;  Gray  went,  accompanied  by  Babcock,  Cur- 
tis, and  Cosgrove  and  G.  C.  Sherman,  Esq.,  who  attended  as 
counsel  for  defendants,  except  Gray.  Bagley  again  repeated 
that  there  were  offers  of  settlement  from  the  plaintiff.  Gray 
told  him  he  would  not  have  anything  to  do  with  settling  it 
unless  the  others  were  willing ;  that  as  they  said,  he  (Gray) 
would  do.  The  defendants  Babcock,  Cosgrove  and  Curtis  re- 
fused to  settle.  After  they  had  dispersed,  Gray,  at  the  re- 
quest of  the  three  last-named  defendants,  went  to  Bagley  and 
told  him  the  defendants  would  not  settle,  that  they  were  ready 
for  trial,  and  he  must  go  on  with  the  cause.  Bagley  then  told 
Gray  go  to  home,  that  he  would  never  hear  anything  more  from 
it ;  thereupon,  Gray  and  the  other  defendants  left,  supposing 
the  cause  finally  disposed  of,  and  that  they  were  discharged. 
Gray  states,  he  never  knew  or  heard  anything  more  of  the 
cause,  until  he  was  informed  an  execution  was  issued  against 
all  the  defendants  for  $228.40  damages  and  costs,  the  judg- 
ment docketed  July  2,  1844.  Daniel  Babcock,  James  Cos- 
grove,  Josiah  Smith  and  Albert  H.  Davis,  each  in  a  separate 
affidavit,  swear  substantially  to  the  facts  as  mentioned  above ; 


NEW-YORK  PRACTICE  REPORTS.  129 

Clarke  agt.  Gray. 

and  each  swear  that  they  never  employed,  or  authorized  to  be 
employed,  B.  Bagley,  Esq.,  or  any  other  person,  to  defend  this 
cause  for  them,  and  never  authorized  said  Bagley  or  any  other 
person  to  settle  the  suit.  Each  were  under  the  impression 
that  if  Gray  defended  the  suit,  his  defence  would  enure  to 
their  benefit,  and  all  swear  to  a  defence  on  the  merits.  On 
the  part  of  plaintiff,  Bernard  Bagley  swears,  that  soon  after 
the  service  of  the  capias  in  this  cause,  the  defendant  George 
J.  Gray  came  to  his  office  and  requested  him,  Bagley,  to  de- 
fend the  suit  for  all  the  defendants,  and  stated  that  all  the 
other  defendants  were  employed  by  him  in  the  affair 
concerning  which  the  suit  was  ^brought,  and  that  he  [*130] 
had  agreed  to  indemnify  them  in  case  they  were 
prosecuted.  Bagley  directed  Charles  D.  Wright,  his  law 
partner,  the  attorney  of  record  for  the  defendants  (in  whose 
name  as  attorney  the  business  of  their  office  is  done),  to  ap- 
pear and  plead  for  all  the  defendants,  which  was  done.  The 
cause  was  noticed  for  trial  at  the  December  Jefferson  circuit, 
1843,  and  put  over  on  defendants'  motion  for  a  commission, 
on  an  affidavit  made  by  defendant  Gray,  in  which  he  stated 
that  the  defendants  had  a  good  and  substantial  defence,  &c., 
as  advised  by  their  counsel,  Bernard  Bagley,  Esq.,  and  that 
the  witness  was  material  as  advised  by  their  said  counsel.  At 
the  June  Jefferson  circuit,  1844,  both  parties  and  their  wit- 
nesses attended  for  trial,  at  which  time  defendant  Gray  was 
anxious  that  Bagley,  the  attorney,  should  bring  about  a  settle- 
ment with  the  plaintiff.  Bagley,  after  some  delay,  succeeded 
in  getting  plaintiff  to  agree  to  take  a  cognovit  for  $100,  besides 
costs,  and  discharge  another  action  of  trespass  which  he  had 
commenced  against  said  Gray  and  one  Hollenbeck.  Bagley 
then  informed  George  C.  Sherman,  Esq.,  who  was  counsel  for 
defendants,  of  this  proposition,  and  asked  his  opinion  about 
it.  Sherman  thought  defendants  ought  to  accept  it.  Bagley 
then  directed  Gray  to  get  all  the  defendants  together,  into  a 
room,  which  was  done.  Bagley  and  Sherman  there  talked 
the  matter  over  with  them,  and  they  all  agreed  that  it 
AY  as  best  to  accept  the  proposition,  in  case  the  plaintiff  woul  L 


130  NEW-YORK  PRACTICE  REPORTS. 

Clarke  agt  Gray. 

give  until  the  then  next  winter  for  Gray  to  pay  the  judgment, 
without  having  to  call  on  the  other  defendants  until  that  time, 
to  which  plaintiff  agreed.  Bagley  then  gave  the  cognovit  on 
the  spot  in  the  court  room,  in  the  name  of  Mr.  Wright,  the 
attorney  of  record,  for  the  defendants,  and  received  a  discharge 
of  the  other  suit.  After  the  cognovit  was  given,  Daniel  Bab- 
cock  came  to  Bagley  and  said  he  would  not  agree  to  the  set- 
tlement unless  plaintiff  would  discharge  him.  Bagley  replied, 
it  was  too  late  then,  the  cognovit  was  given,  that  he  should  have 
made  his  objections  when  defendants  were  all  together  at  the 
time  of  the  settlement.  Bagley  states  that  the  cognovit  was 
given  in  good  faith,  and,  as  he  believes,  with  a  full  knowledge 
and  consent  of  all  the  defendants.  The  plaintiff  swears  that 
all  the  notices,  papers  and  pleadings  received  in  the  cause  from 
defendants  were  from  Charles  D.  Wright,  attorney  for  all  the 
defendants;  also  the  notice  of  retainer;  said  Wright  being 
the  law  partner  of  B.  Bagley,  Esq.  And  corroborates  the 
affidavit  of  B.  Bagley,  in  the  matter  of  the  settlement  at  the 
circuit  and  of  the  giving  the  cognovit.  He  also  goes  into  a 
lengthy  detail  of  the  whole  matters  in  controversy,  which  has 
no  direct  bearing  upon  the  main  points  in  this  motion. 

[*131]  *M.  T.  REYNOLDS,  defendants'  counsel 
J.  MULLIN,  defendants'  attorney. 
J.  A.  SPENCER,  plaintiffs  counsel. 
J.  CLARKE,  plaintiff  in  pro.  per. 

BEARDSLEY,  Justice.  Held,  that  the  attorney  for  the  de- 
fendants had  authority  to  give  the  cognovit  for  all  the  defend- 
ants, and  having  given  it,  the  defendants  were  all  bound  by  it. 

Decision. — Motion  denied,  with  costs. 


NEW-YORK  PRACTICE  REPORTS. 
Freeland  agt.  Marvin. 


JAMES  FREELAND  et  al  agt.  THOMAS  J.  MARVIN,  SAMUEL  0. 
WEST  and  JOHN  FORD. 

A  notice  must  be  served  with  a  special  plea  in  bankruptcy,  requiring  a  plaintiff 
to  reply,  &c.,  otherwise  on  a  motion  for  judgment  as  in  case  of  nonsuit,  the 
cause  will  be  considered  not  at  issue,  through  the  neglect  of  defendant. 

March  Special  Term,  1845. 

MOTION  by  defendants  for  judgment,  as  in  case  of  nonsuit. 

On  the  part  of  the  defendants  it  is  shown,  that  each  defend- 
ant appears  by  a  different  attorney,  and  each  join  in  this  motion. 
Issue  was  joined  as  to  defendants  Marvin  and  Ford,  on  the 
24th  June,  1843,  and  as  to  West  on  the  20th  June,  1843.  The 
venue  is  laid  in  the  city  and  county  of  New-York.  A  circuit 
court  was  held  in  and  for  the  city  and  county  of  New- York 
on  the  fourth  Monday  of  December  last  past.  The  plaintiffs 
did  not  notice  the  cause  for  trial  at  said  circuit ;  and  issues  of 
a  later  date  than  the  above  were  tried  at  said  circuit.  On  the 
part  of  the  plaintiffs,  it  appears  that  this  suit  was  brought  to 
recover  the  amount  of  a  check  given  by  one  of  the  defendants 
in  their  copartnership  name  of  Marvin,  West  &  Co.  On  the 
22d  of  June,  1843,  plaintiffs'  attorney  received  a  plea  of  the 
general  issue  from  defendant  West  separately,  by  Bockes  & 
Nash,  his  attorneys.  On  the  26th  of  June,  1843,  he  received 
a  plea  of  the  general  issue  from  the  defendant  Marvin  sepa- 
rately, by  W.  A.  Beach,  his  attorney.  And  also,  on  the  same 
day  a  plea  of  the  general  issue  and  a  special  plea  of  a  bank- 
rupt's discharge,  concluding  with  a  verification  from  the  de- 
fendant John  Ford  separately,  by  J.  C.  Hulbert,  his  attorney. 
There  was  no  notice  accompanying  the  said  special  plea  of 
bankruptcy  requiring  plaintiffs'  attorney  to  reply  to  same. 
Since  the  receipt  of  the  pleas  no  proceedings  have  been  had  in 
the  cause  until  this  notice  of  motion.  The  delay  on  the  part 
of  plaintiffs  is  sought  to  be  excused  and  explained  by  some  ne- 
gotiations for  the  settlement  of  the  cause;  the  result  of  which 
was  not  known  until  this  notice  of  motion  was  given.  Plain- 


131  NEW-YORK  PRACTICE  REPORTS. 

Cole  agt.  "Wright. 

tiff  submits,  that  this  cause  is  not  at  issue  within  the  27th  rule 
of  this  court,  and  not  ready  to  be  noticed  for  trial.  And  that 
the  omission  to  serve  plaintiff's  attorney  with  notice  to  reply 
to  said  special  plea,  together  with  the  negotiation  for  settle- 
ment, has  been  the  cause  thereof. 

[*132]  *S.  P.  NASH,  defendants1  counsel. 

W.  A.  BEACH,  attorney  for  Marvin. 
BOCKES  &  NASH,  attorneys  for  West. 
JNO.  C.  HULBERT,  attorney  for  Ford. 
P.  CAGGER,  plaintiffs'  counsel. 
GEO.  BOWMAN,  plaintiffs'  attorney. 

BEARDSLEY,  Justice.  The  cause  is  not  at  issue,  through 
neglect  of  defendants  in  omitting  to  serve  plaintiffs'  attorney 
with  a  notice  to  reply  to  the  special  plea  in  bankruptcy ;  that, 
together  with  the  negotiations  which  appears  on  the  part  of 
the  plaintiffs  to  have  been  going  on  for  a  settlement,  is  fatal  to 
defendants  on  this  motion. 

Decision. — Motion  denied  with  costs. 


BENJAMIN  COLE  agt.  GEORGE  C.  WRIGHT. 

II  the  real  defendant  in  a  cause  (not  a  party  to  the  record)  ia  instrumental  in 
keeping  away  plaintiff 's  witnesses  from  the  circuit,  motion  for  judgment  as  in 
case  of  nonsuit  will  be  denied  with  costs. 

March  Special  Term,  1845. 

MOTION  by  defendant  for  judgment  as  in  case  of  nonsuit. 

Defendant's  attorney  swears,  that  issue  was  joined  in  this 
cause  on  the  15th  May,  1843,  and  notice  of  trial  given  for  the 
circuit  court  held  at  Kochester,  on  the  llth  February  last. 
Plaintiff  did  not  proceed  to  the  trial,  and  issues  of  a  later  date 
were  tried  in  their  regular  order  on  the  calendar.  On  the 
part  of  the  plaintiff  it  is  stated  that  one  Moses  Cook  is  the  real 
defendant  in  this  cause,  and  that  said  Cook  secreted  himself  to 
avoid  the  service  of  a  subpoena,  by  and  on  the  part  of  the 


NEW-YORK  PRACTICE  REPORTS.  132 

Smith  agt.  Caswell. 

plaintiff,  and  kept  so  secreted  during  the  circuit,  so  that  the 
sheriff  was  unable  to  serve  an  attachment  upon  him.  And 
also  that  through  the  agency  and  instrumentality  of  the  said 
Cook  and  of  the  defendant,  one  Hiram  L.  Collins,  an  im- 
portant and  indispensable  witness  for  plaintiff,  was  induced  to 
secrete  himself,  (after  having  been  duly  subpoenaed  by  and  on 
behalf  of  plaintiff,)  so  that  the  sheriff  was  unable  to  serve  an 
attachment  upon  him,  although  two  attachments  had  been  is- 
sued during  the  circuit,  and  the  sheriff,  his  officers  and  other 
persons  had  been  in  search  of  him.  The  said  Hiram  L.  Col- 
lins promised  plaintiff,  when  he  was  subpoenaed  and  his  fees 
paid,  that  he  would  attend  the  circuit  as  a  witness  for  him. 
Plaintiff  alleges  that  he  has  at  every  circuit  since  issue  joined, 
been  ready  and  desirous  on  his  part  to  try  the  cause. 

O.  ALLEN,  defendant's  counsel. 
IEA  BELLOWS,  defendant's  attorney. 
A.  TABER,  plaintiff's  counsel. 
ALFRED  ELY,  plaintiff's  attorney. 

BEARDSLEY,  Justice.  Held,  that  the  answer  to  the  motion 
was  conclusive  against  the  defendant,  but  as  defendant's  coun- 
sel desired  an  opportunity  to  explain,  he  would  deny  it  with- 
out prejudice. 

Decision. — Motion  denied  with  costs,  without  prejudice. 


*GERRIT  SMITH  agt.  PELEG  CASWELL  and  ISAAC  I.    [*133] 

FORBES. 

CHARLES  STROUD,  Supervisor  of  the  town  of  Lenox,  agt. 
CHRISTIAN  HARP,  SIMON  HARP  and  ISAAC  I.  FORBES. 

A  purchaser  of  a  sheriff's  certificate,  made  on  a  sale  of  lands,  under  a  judgment 
which  \vas  satisfied  by  such  sale,  cannot  afterwards  obtain  surplus  moneys  in 
the  sheriffs  hands,  which  have  arisen  on  the  sale  of  the  same  land  on  an 
older  judgment,  or  have  the  same  applied  to  the  judgment  under  which  he 
holds  his  certificate. 

VOL.  I.  13 


133  NEW-YORK  PRACTICE  REPORTS. 

Smith  agt.  CaswelL 

April  Term,  1845. 

MOTION  made  at  March  special  term  by  Daniel  B.  Moot 
for  an  order  that  the  sheriff  of  the  county  of  Madison,  pay 
over  to  Daniel  B.  Moot  such  surplus  moneys  as  were  received 
by  him,  arising  out  of  the  sale  of  the  real  estate  of  Isaac  I. 
Forbes,  &c. 

Judgment  was  recovered  in  the  first  cause  above  in  the  su- 
preme court  on  the  13th  December,  1842,  and  which  was  duly 
docketed  in  the  county  clerk's  office,  (Madison  county,)  on  the 
30th  of  said  December  ;  the  amount  being  $685.08.  A  fi.  fa. 
was  issued  on  this  judgment,  and  on  14th  November,  1844, 
a  piece  of  land,  the  property  of  the  defendant  Forbes,  was 
sold  by  the  sheriff  of  Madison  county,  which  was  purchased 
by  said  Smith,  the  plaintiff,  at  $818.26,  the  amount  of  said 
judgment  with  costs,  &c.  The  usual  certificate  was  made  by 
the  sheriff,  &c.,  and  the  execution  was  returned  satisfied.  On 
the  15th  January,  1845,  Daniel  B.  Moot  purchased  said  cer- 
tificate of  Smith,  and  took  an  assignment  thereof  from  him, 
and  which  he  still  holds  and  owns.  The  judgment  in  the 
second  cause  above  was  junior  to  the  judgment  lien  of  the 
first  judgment,  but  it  was  recovered  on  a  collector's  bond  of 
the  town  of  Lenox,  the  amount  of  damages  and  costs  in  said 
suit  was  $1,112.67  at  the  rendition  of  said  judgment:  said 
judgment  was  docketed  in  Madison  county  the  25th 
[*1S4]  November,  1844,  but  the  bond  on  which  it  *had 
been  rendered  was  filed  in  the  office  of  the  clerk  of 
said  county,  the  12th  day  of  December,  1842.  (1  Rev.  Slat.  339, 
§  29.)  .  On  the  30th  January,  1845,  said  land  was  sold  on  a 
fi.fa.  issued  on  this  judgment,  and  purchased  by  said  Moot  at 
$1,600.  This  sum  was  about  $436  above  the  amount  required 
to  satisfy  the  judgment  last  aforesaid,  and  Moot  claimed  he 
was  entitled  to  retain  and  apply  said  balance  on  the  certificate 
aforesaid,  then  owned  by  him ;  this  the  sheriff  refused  and 
Moot  paid  the  whole  amount  of  his  bid,  and  the  sheriff  gave 
him  a  certificate  of  sale. 

The  following  other  judgments  have  been  rendered  against 


NEW-YORK  PRACTICE  REPORTS.  134 

Smith  agt.  Caswell. 

Forbes,  and  executions  thereon  issued  to  the  sheriff  of  Madi- 
son : 

James  Grouse  agt.  Isaac  I.  Forbes  and  Silas  Sayles. — August 
6th,  1844,  judgment  $86.66.  September  11,  1844,  fi.fa.  re- 
ceived by  sheriff. 

Duane  Brown  agt.  Isaac  I.  Forbes,  Jasper  Near  and  Silas 
Sayles.— August  23,  1844,  judgment  $403.40.  January  14, 
18i5,fi.fa.  received  by  sheriff. 

Isaac  Bartktt  agt.  Same. — September  28th,  1844,  judgment 
$278.33.  January  31,  1845,  fi.fa.  received  by  sheriff. 

Moot  now  moves  to  compel  the  sheriff  to  pay  the  balance 
of  said  $1,600,  after  satisfying  Stroud's  judgment,  to  him. 

D.  B.  NOXEN,  counsel  for  motion. 

NOXEN,  LEAVENWORTH  &  COMSTOCK,  attorneys  for  motion. 

A.  TABER,  counsel  opposed. 

D.  BROWN",  attorney  in  opposition. 

BEARDSLEY,  Justice.  By  the  sale  of  Forbes'  land  and  its 
purchase  by  Smith,  the  judgment  in  favor  of  the  latter  was 
satisfied.  That  sale  has  not  been  set  aside,  but  stands  in  full 
force  ;  the  judgment  must  therefore  still  be  regarded  as  ex- 
tinguished. Smith  acquired  by  that  sale  all  the  interest  of 
Forbes  in  the  land,  subject  to  prior  liens.  Moot  has  taken 
the  place  of  Smith  as  such  purchaser,  and  has  acquired  all  the 
right  which  Smith  had.  The  land  has  now  been 
sold  under  a  judgment  lien  prior  to  *that  in  favor  of  [*135] 
Smith,  and  Moot  became  the  purchaser  at  this  sale. 
After  satisfying  the  execution  on  which  this  sale  was  made, 
several  hundred  dollars  of  the  sum  bid  by  Moot  remain  in 
the  sheriff's  hands,  and  Moot  now  asks  to  have  this  surplus 
paid  to  him  towards  satisfying  the  certificate  he  holds,  or  the 
judgment  in  favor  of  Smith  upon  which  the  land  was  first 
sold.  This  cannot  be  done :  the  Smith  judgment  was  extin- 
guished by  a  sale  of  Forbes'  interest  in  the  land,  and  there  is 
no  principle  upon  which  a  cent  of  this  money  can  now  be 
applied  on  it.  Moot  chose  to  purchase  of  Smith,  what  Smith. 


135  NEW-YORK  PRACTICE  REPORTS. 

The  Troy  City  Bank  agt.  Grant. 

took  in  satisfaction  of  his  judgment,  and  he  is  entitled  to  all 
the  r^ght  thus  acquired.  What  it  may  amount  to,  the  court 
cannot  say  ;  but  be  it  more  or  less,  it  lays  no  foundation  for 
such  an  application  as  this.  The  statute  authorizing  lands  to 
be  redeemed  from  sale  on  execution,  has  no  application  to 
this  question. 

The  motion  must  be  denied  with  costs.     Eule  accordingly. 


THE  TROY  CITY  BANK  agt.  GURDON  GRANT  et  al. 

Where  a  verdict  for  plaintiffs  for  less  than  $250  was  stayed  on  a  bill  of  excep- 
tions by  the  defendants,  until  the  interest  carried  the  amount  over  $250  at  the 
final  determination  of  the  suit  in  favor  of  plaintiffs,  and  the  taxing  officer  al- 
lowed full  supreme  court  costs  for  attorney  and  counsel  fees  under  the  act  of 
1840  ;  a  retaxation  was  ordered  and  one-third  of  the  amount  directed  to  be 
deducted.  Interest  is  no  part  of  the  recovery  for  damages ;  it  must  be  taxed 
as  costs,  when  allowed  after  verdict. 

April  Term,  1845. 

MOTION  by  defendants  for  retaxation  of  costs. 

This  was  an  action  of  assumpsit.  The  cause  was  tried  in 
November,  1843,  and  a  verdict  rendered  for  plaintiff  for 
$233.60.  The  defendants  stayed  plaintiffs'  proceedings  and 
made  a  bill  of  exceptions,  which  was  argued  at  the  last  Octo- 
ber term,  and  at  the  last  January  term  was  decided  against 
the  defendants.  The  plaintiffs  then  made  out  their  costs,  and 
procured  the  same  to  be  taxed.  At  the  time  of  the  taxa- 
tion, the  plaintiffs'  demand  for  which  the  verdict  was  rendered 
with  interest  exceeded  two  hundred  and  fifty  dollars ;  and  the 
taxing  officer  allowed  full  supreme  court  costs  for  attorney 
and  counsel  fees.  Defendants  now  move  for  retaxation  on 
the  ground  that  full  supreme  court  costs  should  not  have  been 
allowed. 

J.  D.  WILLARD,  defendants'  counsel. 
WILLARD,  EAYMOND  &  WOODBURY,  defendants'  at- 
torneys. 


NEW-YORK  PRACTICE  REPORTS.  136 

"Wilder  agt.  Wheeler. 

N.  HILL,  JR.,  plaintiffs'  counsel. 
DAVID  BUEL,  JR.,  plaintiff's  attorney. 

BRONSON,  Chief  Justice.    One-third  the  amount  of 
attorney  and  counsel  *fees  as  taxed  must  be  deducted.     [*136] 
We  have  always  held  that  the  "  recovery "  within 
the  meaning  of  the  act  regulating  costs,  is  the  recovery  for 
damages.     If  the  plaintiff  gets  interest  on  his  verdict,  it  is  by 
taxation  as  costs.     The  verdict  must  govern,  and  the  circum- 
stance that  proceedings  have  been  stayed  by  case  or  bill  of 
exceptions  makes  no  difference. 

Eule  deducting  one-third  attorney  and  counsel  fee. 


GrEORGE  Gr.  WILDER  and  BENJAMIN  SNOW,  JR.   agt.   BENJA- 
MIN WHEELER. 

Principles  upon  relaxation  of  costs. 

April  Term,  1845. 

MOTION  by  plaintifis  for  retaxation  of  costs. 

This  cause  and  another  against  the  same  defendant,  were 
noticed  for  hearing  the  same  day,  before  referees,  both  involv- 
ing the  same  question ;  witnesses  were  sworn  in  the  other 
cause,  in  which  plaintiffs  obtained  a  judgment  for  damages 
and  costs.  It  was  afterwards  agreed  that  the  same  testimony 
should  be  used  in  this  cause.  It  appeared  that  the  witnesses 
were  subpoenaed  in  this  cause  also.  Plaintiffs  recovered  less 
than  $50. 

E.  PEARSON,  plaintiffs'  counsel. 

PEARSON  &  CHURCH,  plaintiffs'  attorneys. 

C.  D.  SHELDON,  defendant's  counsel  and  attorney. 

BRONSON,  Chief  Justice.  Notice  on  order  for  bill  of  par- 
ticulars— affidavit  to  procure  absolute  order  for  bill  of  partic- 
ulars— proof  of  service  of  subpoena — proof  of  service  of  notice 


136  NEW-YORK  PRACTICE  REPORTS. 

Stevens  agt.  Thompson. 

to  produce  books  and  papers,  and  docketing  transcripts,  are 
not  taxable  items,  and  must  be  stricken  out. 

The  witnesses'  fees  are  taxable  in  this  cause,  although 
sworn  in  the  other  and  not  in  this.  Affidavit  for  relaxation, 
as  to  items  not  provided  for  in  the  bill,  need  only  show  that 
such  items  were  objected  to  before  the  taxing  officer.  As  to 
the  other  items,  it  should  state  the  grounds  of  the  objections 
to  such  items. 


JAMES  D.  STEVENS  agt.  JESSE  THOMPSON. 

A  defendant  will  be  let  in  to  plead  and  defend,  after  default  and  judgment,  having 
merits  which  he  asserts  he  wishes  and  intends  to  interpose ;  where  he  has 
evidently  been  misled  by  plaintiff  in  taking  his  default,  although  uninten- 
tionally. 

April  Term,  1845. 

MOTION  by  defendant  Thompson  to  set  aside  default  and 
subsequent  proceedings. 

This  was  a  proceeding  for  the  determination  of  a 
[*137]  claim  to  real  *estate  under  Rev.  Slat.  part.  3,  Ch.  5, 
tit.  2.  The  ordinary  notice  was  served  personally  on 
said  Thompson,  October  29, 1844,  and  the  usual  rule  to  appear 
and  plead  was  entered  November  1,  1844.  The  default  was 
taken  on  the  9th  January,  1845,  and  judgment  perfected  22d 
January,  1845.  About  twenty-five  days  after  the  service, 
Thompson  the  defendant  sent  the  notice  to  Kirkland  &  Bacon, 
his  attorneys  at  Utica,  with  a  request  not  to  do  anything  in  the 
matter  until  it  became  necessary,  as  he  hoped  to  be  able  to 
settle  it.  On  the  25th  of  December,  Thompson  called  on 
Kirkland  &  Bacon,  and  Kirkland  told  him  he  had  seen  O.  S. 
Williams,  Stebbins'  attorney,  and  Williams  told  him,  that  no 
rule  had  been  entered  in  the  matter,  and  that  he  did  not  know 
when  he  should  enter  one.  On  the  27th  December,  Thomp- 
son sent  to  Williams  a  letter  as  follows :  "I  saw  Mr.  Kirk- 
land on  the  25th  inst.,  and  he  wished  me  to  ask  you  if  you 


NEW-YORK  PRACTICE  REPORTS.  137 


Stevens  agt.  Thompson. 


had  entered  any  rule  in  the  Stebbins  land  suit  yet :  if  so, 
when  ?    If  no  rule  is  yet  entered,  will  you  apprise  him  or  me 
when  you  do  enter  such  rule  ?     Please  say  on  this  paper,  and 
oblige  yours."    In  answer,  O.  S.  Williams,  Esq.,  wrote  the 
following :    "In  reply  to  above  I  would  say,  that  no  rule  has 
been  entered  in  the  Stebbins  matter,  and  when  any  will,  is 
more  than  I  can  tell.     I  have  not  looked  into  the  matter 
much,  but  shall  do  so  before  long."     This  letter,  containing 
both  communications,  was  sent  by  Thompson  to  Kirkland  & 
Bacon.     A  few   days   after  this  communication  was  had, 
Thompson  called  at  Williams'  office,  and  Williams  informed 
him  that  he  would  inform  him,  Thompson,  or  Kirkland  & 
Bacon,  when  any  rule  was  entered.     Kirkland  &  Bacon,  rely- 
ing upon  what  had  transpired  between  them  and  Williams, 
and  also  between  Thompson  and  Williams,  took  no  farther 
means  of  ascertaining  that  a  rule  had  been  entered,  and  heard 
nothing  farther  from  it  until  the  last  January  term  of  this 
court :  Kirkland,  while  in  attendance  upon  the  court,  hap- 
pened to  discover  a  rule  for  default  entered  in  the  clerk's 
minutes  against  Thompson  for  not  pleading,  bearing  date 
January  9,  1845.     Thompson  swears  to  merits  and  a  good 
cause  of  action.     Williams  explained  by  saying,  that  on  or 
about  the  9th  of  December,  he  met  Kirkland  in  the  cars,  when 
a  conversation  was  had  respecting  this  suit,  and  Kirkland  in- 
quired of  Williams  in  these  words :    "  You  have  not  entered 
any  default,  I  suppose  ?"  to  which  Williams  answered  he  had 
not,  as  the  time  to  plead  had  not  expired.     Kirkland  then 
asked  when  the  time  to  plead  would  expire  ;  to  which  Wil- 
liams replied,  he  did  not  recollect  precisely,  but  thought  it 
would  be  some  time  in  the  next  week.  Kirkland  then  asked  if  it 
was  necessary  to  serve  a  notice  of  the  rule  to  appear  and  plead, 
on  Thompson ;  to  which  Williams  replied  it  was  not, 
as  he  understood  the  *practice.    Kirkland  said  he  must     [*138] 
look  into  the  matter,  and  Williams  said  he  must  do  the 
same,  as  the  practice  was  not  familiar  to  him.    In  the  last  expres- 
sion Williams  said  he  had  particular  reference  to  the  practice  in 
regard  to  entering  default  and  perfecting  judgment  in  such 


138  NEW-YORK  PRACTICE  REPORTS. 

Stevens  agt.  Thompson. 

cases.  Williams  said  that  it  was  possible  that  Kirkland,  in  his 
first  inquiry,  used  the  word  rule  instead  of  default,  as  the  cars 
were  going,  and  there  being  considerable  noise ;  but  thinks 
not :  and  as  to  the  rest  of  the  conversation  at  that  time,  he  had 
a  distinct  recollection  of  its  being  correct.  Williams  said  that 
he  had  in  mind  the  conversation  with  Kirkland  when  Thomp- 
son sent  him  a  letter,  and  supposed  that  the  rule  inquired 
about  was  a  rule  for  default ;  and  so  in  the  subsequent  con- 
versation with  Thompson,  he  supposed  he  was  to  give  Kirk- 
land &  Bacon  notice  when  he  had  entered  the  rule  for  default, 
as  Thompson  requested ;  which  he  called  on  Kirkland  and 
Bacon  to  do  the  next  time  he  was  in  Utica  after  the  default 
was  entered. 

A.  TABER,  defendant's  counsel. 
KIRKLAND  &  BACON",  defendants  attorneys. 
R.  W.  PECKHAM,  plaintiff's  counsel. 
O.  S.  WILLIAMS,  plaintiff's  attorney. 

BRONSON,  Chief  Justice.  Stebbins  has  been  regular  in  his 
proceedings.  Most  of  the  questions  mentioned  at  the  bar, 
have  already  been  decided.  (Plait  agt.  Torry,  18  Wend.  572 ; 
and  a  case  decided  within  the  last  year  not  yet  published.) 
But  Thompson  swears  to  merits  and  a  good  cause  of  action ; 
and  there  has  been  a  very  great  misunderstanding  in  relation 
to  this  matter  between  him  and  his  attorney  on  the  one  side, 
and  the  attorney  for  Stebbins  on  the  other.  I  do  not  think 
there  was  any  intention  to  mislead  on  the  part  of  Mr.  Wil- 
liams, either  in  what  he  said  or  in  what  he  wrote  ;  but  still  it 
•  is  difficult  to  deny,  on  these  papers,  that  the  opposite  attor- 
neys have  been  misled.  True,  I  do  not  see  why  Thompson 
should  have  been  waiting  for  a  rule  ;  he  might  have  brought 
his  action  to  recover  the  land.  But  as  he  swears  to  a  good 
title,  and  the  intention  to  assert  it,  I  think  he  should  be  al- 
lowed an  opportunity  to  do  so. 

Decision. — Ordered  that  Thompson  be  at  liberty  at  any  time, 
within  twenty  days  to  appear,  and  either  to  plead  or  declare 


NEW-YORK  PRACTICE  REPORTS  139 

Harris  agt  "Warren. 

pursuant  to  the  statute.  And  in  case  he  shall  do  so,  then 
the  default  and  judgment  which  have  been  entered  by  Steb- 
bins,  shall  be  set  aside  as  of  this  day. 


*LUCRETIA  HARRIS  et  al  agt.   MOSES  WARREN,    [*139] 
Impleaded,  &c. 

•V  '  '£,     01. 

An  irregular  judgment  will  be  set  aside,  if  motion  is  not  nA^.^^^  '^one  year, 
where  it  appears  the  irregularity  is  not  merely  technical,  but  a  uu  n^of  sub- 
stance. 

April  Term,  1845. 

MOTION  by  R  M.  and  M.  I.  Townsend,  as  attorneys  for  Mo- 
ses Warren,  and  in  their  own  behalf,  as  purchasers,  to  vacate 
a  judgment  as  against  Warren. 

Suit  commenced  on  a  promissory  note  against  Moses  War 
ren  and  others,  September  21,  1842.  Warren  was  indorser ; 
venue  Saratoga  county ;  copy  declaration  and  copy  note  at- 
tached was  served  on  Warren  on  the  21st  September,  1842. 
On  the  8th  October,  1842,  Warren  procured  an  order  to  ex- 
tend his  time  to  plead  twenty  days,  and  served  same,  together 
with  a  notice  of  retainer,  by  E.  M.  Townsend,  his  attorney,  on 
B.  I\  Agan,  plaintiffs'  attorney,  same  day,  to  wit,  8th  Octo- 
ber, 1842.  On  the  27th  October,  Warren's  attorney  served 
plaintiff's  attorney  with  a  plea  duly  verified,  which  was  re- 
ceived by  plaintiff's  attorney,  Agan,  before  Warren's  time  to 
plead  had  expired.  Plaintiff's  attorney  noticed  cause  for  trial 
15th  November,  1842,  for  first  Monday  of  December  follow- 
ing. The  cause  was  then  not  tried ;  and  plaintiff's  attorney 
stipulated  to  try  it  at  the  December  circuit,  1843.  The  cause 
was  not  then  tried ;  and  plaintiffs'  attorney  again  noticed  it 
for  trial  for  the  June  circuit,  1844.  The  cause  has  never  been 
tried.  Warren  died  6th  February,  1845,  and  the  cause  was 
then  pending  and  undetermined  as  against  Warren.  On  the 
22d  April,  1843,  R.  M.  and  M.  I.  Townsend  purchased  of  said 
Warren  certain  real  estate  in  the  county  of  Eensselaer,  which 


139  NEW-YORK  PRACTICE  REPORTS. 

Harris  agt.  "Warren. 

•was  conveyed  to  them  by  deed  from  said  Warren,  for  a  valu- 
able consideration,  paid.  On  the  6th  of  March,  1845,  Towns- 
ends  first  learned  that  plaintiffs'  attorney  had  on  the  llth 
October,  1842,  entered  a  judgment  in  favor  of  the  plaintiffs, 
against  Warren  and  the  other  defendants,  for  $1,036.45  dam- 
ages and  costs ;  and  a  transcript  thereof,  on  the  same  day  was 
filed  in  the  Eensselaer  county  clerk's  ofiice,  which  became  a 
lien  upon  the  property  purchased  by  Townsends. 

The  plaintiffs  alleged  that  the  sale  made  by  Warren  to  the 
Townseivi  fi*x  without  any  adequate  consideration,  and  was 
inten^  *.  *.  M  cover  the  property  of  Warren,  and  avoid  the  pay- 
iiient  of  the  aforesaid  judgment.  One  Chandler  swears  he 
informed  Warren,  about  four  weeks  after  the  entry  of  the 
judgment  and  filing  transcript,  that  the  same  was  done. 

TOWNSEND  &  HILL,  counsel  for  motion. 
B.  M.  &  M.  I.  TOWNSEND,  in  propria  persona. 
M.  T.  REYNOLDS,  counsel  opposed. 
B.  F.  AGAN,  plaintiffs'  attorney. 

BRONSON,  Chief  Justice.  The  plaintiffs  entered  an  irregu- 
lar judgment  against  Warren  before  his  time  for 
[*140]  pleading  had  expired.  Finding  *themselves  in  the 
wrong,  the  plaintiffs  waived  the  judgment,  and  no- 
ticed the  cause  for  trial  several  times ;  and  it  remained  pend- 
ing and  undetermined  when  Warren  died  in  February  last. 
This  irregular  and  abandoned  judgment  cannot  be  allowed  to 
stand,  either  against  Warren,  or  those  claiming  under  him, 
whether  as  heirs,  devisees,  or  purchasers.  The  Townsends 
stand  in  the  latter  character.  If  Warren  knew  that  a  judg- 
ment had  been  entered,  he  knew  also  that  it  had  been  waived. 
This  is  not  a  mere  technical  irregularity,  as  to  which  a  party 
must  move  within  a  year  after  judgment.  The  motion  is 
founded  on  matter  of  substance.  The  plaintiffs  have  a  judg- 
ment without  the  shadow  of  legal  foundation  to  support  it. 

Decision. — Ordered,  That  the  judgment  entered  against  the 
defendants  in  this  cause,  so  far  as  relates  to  the  defendant 


NEW-YORK  PEACTICE  REPORTS.  140 

Gurney  agt.  Parks. 

Moses  Warren,  be  vacated  and  set  aside ;  so  that  the  said 
judgment  shall  not  affect  any  property  £eld  under  said 
Warren. 


WILLIAM  H.  GURNEY  agt.  DAVID  PARKS. 

Where  a  verdict  was  rendered  for  defendant  at  the  circuit,  and  plaintiff  moved 
ibr  a  new  trial  on  a  bill  of  exceptions,  which  was  decided  in  favor  of  the  de- 
fendant; and  pending  the  motion  for  a  new  trial  the  defendant  died;  the 
defendant,  on  application,  was  permitted  to  enter  judgment  as  of  the  next  suc- 
ceeding term,  after  verdict,  during  the  lifetime  of  defendant. 

April  Term,  1845. 

MOTION  by  defendant  for  leave  to  enter  up  judgment  on 
the  verdict  rendered  in  this  cause,  as  of  May  term,  1841. 

Eeplevin,  tried  at  the  Dutchess  circuit,  1840 ;  verdict  for 
defendant  for  rent,  $179,  and  the  value  of  the  goods  were  as- 
sessed at  $260.  Proceedings  were  stayed,  and  bill  of  excep- 
tions brought  by  plaintiff's  attorney.  On  the  12th  December 
last,  defendant's  attorney  served  a  notice  of  argument  on 
plaintiff's  attorney,  for  January  term  last ;  at  which  term 
judgment  of  affirmance  was  rendered  for  defendant.  David 
Parks,  the  defendant,  died  on  the  10th  March,  1843,  pending 
the  motion  for  a  new  trial. 

Plaintiff's  attorney  states  he  never  received  any  notice  of 
argument  in  the  cause  for  January  term  last. 

M.  T.  KEYNOLDS,  defendants  counsel. 
D.  PECK,  defendants  attorney. 
S.  STEVENS,  plaintiffs  counsel. 
WILLIAM  ENO,  plaintiff' 's  attorney. 

BRONSON,  Chief  Justice.  This  question  is  decided  by  the 
case  of  Spalding  agt.  Congdon,  (18  Wendell,  543.) 

Decision. — Motion  granted. 


141  NEW-YORK  PRACTICE  REPORTS. 

Brown  agt.  "Wesson. 


[*141]  *NELSON  BROWN  and  HIAL  FITCH,  plaintiffs  in  error 
agt.  DAVID  WESSON  and  ANDREW  WESSON,  defend- 
ants in  error. 

An  action  in  trover  before  a  justice  of  the  peace,  in  which  a  promissory  note  was 
introduced  and  proved  as  the  amount  of  damages  claimed,  and  was  delivered 
up  and  cancelled  on  the  trial,  and  judgment  in  trover  was  rendered  for  that 
amount  against  the  defendants,  they  not  appearing  to  defend  ;  the  defendants 
on  an  ex  parie  application,  procured  a  common  law  certiorari  to  remove  the 
proceedings  into  this  court  :  And  on  a  motion  by  defendants  in  error  to  quash 
the  certiorari  on  the  ground  that  it  appeared  the  principal  ground  of  the  plain- 
tifls  hi  error,  was,  that  the  proof  before  the  justice  was  not  sufficient  to  war- 
rant a  judgment  in  trover,  and  that  the  action  should  have  been  assumpsit  ; 
it  was  held  that  such  a  question  could  not  be  reached  by  a  common  law  cer- 
tiorari ;  and  motion  was  granted  with  costs. 

April  Term,  1845. 

MOTION  by  defendants  in  error  to  quash  a  common  law 
certiorari. 

On  the  7th  March  last,  this  court  granted  a  common  law 
certiorari  in  this  cause,  on  the  ex  parte  application  of  plain- 
tiffs in  error;  said  certiorari  was  directed  to  the  common 
pleas  of  Chenango  county  ;  the  motion  was  founded  on  the 
affidavit  of  Nelson  Brown,  one  of  the  plaintiffs  in  error  :  to 
which  was  annexed  the  papers  used  in  the  common  pleas  on 
motion  to  set  aside  the  execution  issued  by  the  clerk  of  Che- 
nango county,  and  for  a  perpetual  stay  of  proceedings  on  said 
execution.  The  papers  on  which  said  motion  in  the  common 
pleas  was  founded,  showed  that  the  plaintiffs  in  error  were 
sued  by  the  defendants  in  error  in  justice's  court  in  Oxford, 
and  that  the  declaration  in  the  justice's  court  was  in  trover  for 
boots  and  shoes,  obtained  by  false  pretences  ;  a  note  was  given 
by  defendants  for  the  boots  and  shoes,  which  note  was  deliv- 
ered to  the  justice  to  be  cancelled  on  the  trial.  The  defend- 
ants did  not  appear  in  the  justice's  court,  and  judgment  for 
plaintiffs  for  damages  and  costs,  $66.76,  on  the  9th  October, 
1843,  was  rendered  against  them,  a  transcript  filed  and  exe- 
cution issued  by  the  clerk  of  Chenango  county.  The  evidence 


NEW-YORK  PRACTICE  REPORTS.  141 

Brown  agt.  "Wesson. 

before  the  justice  appeared  with  the  papers.  The  affidavit  of 
Nelson  Brown,  upon  which  the  certiorari  was  granted,  stated 
"  that  he  believed  an  improper  and  fraudulent  attempt  was 
made  in  said  cause  to  convert  a  contract  debt  into  a  tort,  and 
that  the  defendants  (plaintiffs  in  error)  applied  to  the  common 
pleas  for  relief  by  motion,  and  they  grated  an  order  staying 
proceedings  to  enable  the  defendants  (plaintiffs  in  error)  to 
bring  these  proceedings  before  this  court  by  a  common 
law  certiorari."  This  motion  to  quash  said  certiorari  was 
founded  upon  the  papers  on  which  the  said  certiorari 
was  allowed,  and  also  upon  the  affidavits  of  Henry  E.  My- 
gatt  (attorney),  and  Austin  Hyde  (judge  of  common  pleas), 
and  thereto  are  annexed  the  affidavit?  of  said  attorney,  and 
TJri  Tracy  (justice),  used  in  common  pleas  to  resist 
said  motion  and  orders  of  court  below.  The  ^justices'  [*142] 
affidavit  used  to  resist  the  motion  in  the  common 
pleas  stated,  that  the  judgment  was  rendered  in  trover ;  and 
that  the  plaintiffs'  attorney  brought  to  court  a  declaration 
part  printed  and  part  written  in  trover ;  and  the  affidavit  of 
the  attorney  stated  an  admission  made  by  defendants  in 
justice's  court.  The  common  pleas  denied  the  motion  with 
costs,  and  directed  an  alias  execution  to  issue ;  after  the  mo- 
tion was  decided,  they  granted  time  to  move  for  a  certiorari 
or  mandamus.  The  affidavits  of  the  attorney  (Mygatt)  and 
the  judge  (Hyde),  upon  this  motion,  showed  that  the  motion 
in  the  common  pleas  was  resisted  upon  two  affidavits  above 
stated,  and  that  said  two  orders  were  entered.  Hyde  was  one 
of  the  judges  who  presided  on  the  motion,  and  he  stated  that 
"  the  counsel  of  said  Brown  and  Fitch  assumed  among  other 
grounds,  that  the  evidence  before  the  justice  was  not  sufficient 
to  sustain  trover,  and  that  the  action  should  have  been  in 
assumpsit  and  not  in  trover."  The  affidavit  of  attorney 
(Mygatt)  stated  that  no  notice  was  given  for  said  motion  for 
certiorari,  and  that  he  expected  notice,  and  that  the  costs  ($7), 
in  the  common  pleas  directed  to  be  paid  on  denying  the  mo- 
tion, had  not  been  paid. 


142  NEW-YORK  PRACTICE  REPORTS. 

Cagger  agt.  Gardner. 

H.  H.  MARTIN,  counsel  for  defendants  in  error. 
N.  HILL,  JR.,  counsel  for  plaintiffs  in  error. 
H.  R.  MYGATT,  attorney  for  defendants  in  error. 
H.  BENNETT,  attorney  for  plaintiffs  in  error. 

BRONSON,  Chief  Justice.  There  can  be  little  doubt  that 
the  writ  was  allowed  at  the  March  special  term,  on  the  sup- 
position that  the  action  before  the  justice  was  assumpsit  on  a 
promissory  note,  and  the  judgment  in  trover  for  boots  and 
shoes.  If  such  had  been  the  fact,  there  would  have  been 
error  in  those  parts  of  the  proceedings,  which  are  in  the 
nature  of  a  record,  and  a  common  law  certiorari  might 
have  been  an  available  remedy.  But  it  now  clearly  appears 
that  the  action  was  trover  from  beginning  to  end ;  and  the 
only  question  which  can  be  made,  is,  whether  there  was  suf- 
ficient evidence  to  support  the  judgment  Such  a  question 
cannot  be  reached  by  a  common  law  certiorari,  and  it  would 
be  worse  than  useless  to  go  on  with  the  litigation.  Motion 
granted. 


PETER  CAGGER  agt.  WILLIAM  S.  GARDNER. 

Whore  a  party  moves  on  a  mere  irregularity,  he  must  be  held  to  the  rule  strictly, 
and  move  the  first  opportunity,  or  he  will  be  too  late. 

April  Term,  1845. 

MOTION  by  defendant  to  set  aside  judgment  for  irregularity. 
Action  brought  against  Peter  Comstock  as  maker, 
[*143]  and  defendant  as  indorser,  *of  a  promissory  note ; 
Gardner  the  defendant  only,  was  served  with  a  de- 
claration. At  the  last  January  (Albany)  circuit,  the  cause 
entitled  "Peter  Cagger  agt.  Peter  Comstock  and  William  S. 
Gardner"  was  noticed  for  trial ;  Gardner  only  appeared  on 
the  trial ;  a  verdict  was  taken  against  him  for  $2,454.04,  and 
the  damages  assessed  against  Peter  Comstock  for  the  same 
amount.  E.  Clark,  Esq.,  one  of  defendant's  attorneys,  being 


NEW-YORK  PRACTICE  REPORTS.  143 

Wilcox  agt.  Moses. 

present  at  the  trial.  Cagger,  the  plaintiff,  and  one  of  plain- 
tiff's attorneys,  supposed  that  Comstock  had  been  served  with 
a  declaration,  and  his  default  entered  when  he  procured  the 
assessment  of  damages  against  him ;  he  afterwards,  on  the 
llth  of  February,  informed  defendant's  attorney,  Clark,  that 
he  waived  the  verdict  as  against  Comstock  ;  and  at  the  same 
time  served  Clark  with  a  copy  of  the  bill  of  costs  and  notice 
of  retaxation  entitled  against  Gardner  separately.  Judgment 
was  entered  against  Gardner  only,  and  execution  issued  on 
the  14th  March  last. 

E.  CLARK,  defendants  counsel. 
CLARK  &  PATTISON,  defendant's  attorneys. 
C.  STEVENS,  plaintiffs  counsel. 
CAGGER  &  STEVENS,  plaintiff's  attorneys. 

BRONSON,  Chief  Justice.  The  defendant  has  no  merits ; 
but  moves  on  the  sole  ground  of  irregularity.  In  such  cases, 
the  rule  is,  that  the  party  must  move  at  the  first  opportunity, 
or  he  will  be  too  late.  Here  the  defendant's  attorneys  knew 
of  the  irregularity  on  the  llth  of  February,  three  full  weeks 
before  the  March  special  term,  at  which  time  he  should  have 
moved. 

Decision. — Motion  denied  with  $7  costs  of  opposing. 


FORTIS  M.  WILCOX  agt.  AUGUSTUS  MOSES. 

Where  a  motion  is  denied  without  prejudice  to  the  right  to  renew  it,  and  on  the 
second  motion  no  part  of  the  moving  papers  show  that  it  is  a  renewal  of  a  mo- 
tion ;  and  objection  is  made  to  the  motion  on  the  ground  that  it  has  been 
decided ;  the  rule  entered  granting  such  leave  to  renew,  is  then  offered  to  be 
read,  and  that  is  objected  to,  on  the  ground  that  the  moving  papers  do  not 
refer  to  it.  The  court  will  allow  the  motion  to  stand  over  to  next  without 
costs,  with  leave  to  serve  further  papers. 


143  NEW-YORK  PRACTICE  REPORTS. 

The  "Watervliet  Bank  agt.  Clark. 

April  Term,  1845. 

MOTION  by  plaintiff  for  costs  of  the  last  Essex  circuit,  held 
January  28,  1845.  It  was  opposed  on  the  ground  that  it  was 
too  late.  (2  Wend.  286.) 

Chief  justice  said  that  rule  did  not  apply  to  substantial 
matters  of  this  kind.  It  was  replied  that  the  motion  was 
made  last  term  and  denied,  without  prejudice.  It  was  then 
objected  that  it  did  not  appear  from  any  of  the  papers  that  it 
was  a  renewal  of  a  former  motion.  The  rule  of  last  term  was 
then  offered  to  be  read,  and  was  objected  to.  Chief 
[*144]  justice  *said  he  did  not  see  why  it  might  not  be  read, 
and  farther  said  that  if  he  did  not  grant  the  motion, 
he  should  let  it  stand  over  without  costs  to  serve  further  pa- 
pers; on  the  objection  being  insisted  on,  the  motion  was 
directed  to  stand  over  for  that  purpose. 

E.  PEARSON,  plaintiff  's  counsel. 
G.  E.  ANDREWS,  plaintiff'1  s  attorney. 
N.  HILL,  JR.,  defendant 's  counsel. 
A.  C.  HAND,  defendant's  attorney. 

Kale  entered  according  to  the  above  decision. 


THE  WATERVLIET  BANK  agt.  EBENEZER  CLARK,  Imp'd  &c. 

On  a  motion  to  set  aside  a  report  of  referee  and  subsequent  proceedings  for  ir- 
regularity, and  the  decision  turns  on  a  question  of  fact  about  which  there  is 
nearly  equal  conflicting  evidence,  and  the  defendant  who  seeks  to  set  aside 
the  report,  and  to  be  let  hi  to  defend,  swears  to  merits,  the  report,  &c.,  will  be 
set  aside  without  costs  to  either  party. 

April  Term,  1845. 

MOTION  by  defendant  to  set  aside  report  of  referee,  judg- 
ment, &c.,  for  irregularity. 

Assumpsit,  on  a  promissory  note,  cause  referred  to  Ira  Harris, 
sole  referee,  in  October,  1843.  Cause  was  adjourned  from 
time  to  time,  until  the  21st  February,  1845 ;  when  Harris, 


NEW-YORK  PRACTICE  REPORTS.  144 

The  Watervliet  Bank  agt.  Clark. 

referee,  appointed  the  8th  day  of  March,  1845,  for  a  further 
hearing  before  him,  at  his  office  in  Albany ;  Anthony  Ten 
Eyck,  who  was  a  clerk  in  the  office  of  E.  C.  Litchfield,  plain- 
tiff's attorney,  made  a  copy  of  the  said  notice  of  hearing  and 
compared  it  with  John  B.  Frisbee,  who  was  also  a  clerk  in 
said  Litchfield's  office,  with  the  original,  signed  by  said  Har- 
ris, and  both  said  clerks  swore  that  the  copy  notice  was  a  true 
copy  of  the  original,  and  that  the  copy  notice  as  well  as  the 
original  designated  the  8th  day  of  March,  as  the  day  of  hear- 
ing before  the  referee ;  and  Ten  Eyck  swore  that  he  served 
the  same  copy,  so  compared,  on  a  person  being  in  the  office  of 
Clark  &  Pattison,  defendant's  attorneys,  residing  in  Troy,  in 
office  hours,  on  the  20th  of  February,  1845 ;  said  Clark  & 
Pattison  being  then  absent  from  their  office.  Ten  Eyck  also 
swore  that  at  the  time  of  the  service,  the  notice  of  hearing 
was  for  the  8th  of  March.  On  the  back  of  the  copy  notice  of 
hearing  served  as  aforesaid,  was  an  indorsement,  as  follows : 
"  Copy  appointment  of  hearing  for  10th  day  of  March,  at  10 
A.  M.,"  which  indorsement  Frisbee  swore  he  made  by  mistake, 
confounding  it  with  other  notices  of  hearing  in  other  causes 
for  the  10th  of  March,  between  the  same  attorneys.  The 
same  copy  served  was  produced  and  filed  on  this  motion ; 
and  which  appears  to  have  been  altered  in  the  body  of  the 
notice  from  8th  to  10th,  the  figure  10  written  over  the  fig- 
ure 8.  Clark  &  Pattison  in  their  moving  papers  gave 
a  copy  of  the  notice  served,  for  "*the  10th,  and  both  [*145] 
swore  that  it  was  a  correct  copy  of  the  only  one  served 
by  plaintiff 's  attorney,  in  February  last,  in  said  cause ;  and 
was  a  copy  of  the  same  as  served.  On  the  1C  th  March,  Clark 
attended  with  his  witnesses,  and  found  that  the  hearing  was 
had  on  the  8th,  and  learned  a  judgment  had  been  entered  on 
the  report  of  the  referee  for  plaintiff,  for  $309.43  damages, 
and  $138.40  cost;  which  judgment  plaintiff's  attorney  refused 
to  waive,  on  defendant's  application;  defendant  swore  to 
merits. 
VOL.  I.  14 


145  NEW-YORK  PRACTICE  REPORTS. 

Cowton  agt.  Anderson. 

E.  CLARK,  defendants  counsel. 

CLARK  &  PATTISON,  defendant's  attorneys. 

E.  C.  LITCHFIELD,  plaintiff's  counsel  and  attorney. 

BRONSON,  Chief  Justice.  This  is  one  of  those  cases  in  which 
both  of  the  parties  think  themselves  right  on  a  question  of 
fact,  and  where  it  is  impossible  on  the  papers  presented  to  say 
with  any  great  degree  of  certainty,  which  is  in  the  wrong. 
The  defendant  swears  to  merits,  and  on  the  whole  I  think  the 
report  of  the  referee  and  subsequent  proceedings  on  the  part 
of  the  plaintiffs  should  be  set  aside,  without  costs  to  either 
party. 

Eule  accordingly. 


ARTHUR  COWTON  agt.  ISAAC  ANDERSON,  JR. 

Where  a  defendant  suffers  judgment  to  be  taken  against  him  by  default,  on  a 
promissory  note,  which  defendant  alleges  was  given  for  money  won  at  play,  and 
consequently  void  under  the  statute  against  gaming ;  he  cannot  succeed  to  set 
aside  the  default  and  judgment,  on  a  motion  afterwards,  on  the  ground  that 
the  note  was  yoid  under  the  statute ;  he  must  avail  himself  of  his  defence  by 
pleading. 

April  Term.,  1845. 

MOTION  by  defendant  to  set  aside  default  and  all  subsequent 
proceedings,  or  for  a  perpetual  stay  of  execution  thereon. 

Assumpsit  on  a  promissory  note  ;  judgment  entered  by  de- 
fault against  defendant  January  2d,  1845,  for  $557.24  damages 
and  costs ;  4th  February,  execution  was  issued  to  sheriff  of 
Westchester,  and  defendant's  real  estate  advertised  for  sale. 
The  ground  of  the  application  was,  that  the  note  on  which  the 
judgment  in  this  cause  was  recovered  was  given  by  defendant 
for  money  won  at  play,  and  was  therefore  void  under  the  stat- 
ute against  gaming.  No  excuse  was  shown  by  the  defendant 
for  not  having  pleaded  the  statute  in  bar  of  a  recovery,  or 
having  put  in  his  defence  in  proper  time. 


NEW-YORK  PRACTICE  REPORTS.  145 

Northrop  agt.  Wright. 

N.  B.  BLUNT,  defendant's  counsel. 
A.  L.  BROWN,  defendant's  attorney. 
J.  NEWLAND,  plaintiff's  counsel. 
A.  B.  BELKNAP,  plaintiff's  attorney. 

BRONSON,  Chief  Justice.     The  fact  that  the  note  was  given 
for  money  won  at  play,  does  not  take  it  out  of  the 
general  rule,  that  a  party  must  *put  in  his  defence  at     [*146] 
the  proper  time  of  pleading,  and  not  suffer  a  default 
to  be  taken  against  him.     The  defendant  shows  no  excuse  for 
not  having  availed  himself  of  his  defence  by  pleading.     The 
motion  must  be  denied  with  costs. 

Rule  accordingly. 


RODOLPHUS  E.  NORTHROP  agt.  WILLIAM  WRIGHT. 

On  a  motion  that  plaintiff  file  security  for  costs,  the  defendant  will  not  be  allowed 
as  a  general  rule  to  have  the  amount  increased  over  $250,  where  it  appears 
the  cause  has  been  through  a  long  course  of  litigation,  and  the  amount  of  costs 
is  large.  A  plaintiff  non-resident,  although  compelled  to  bring  an  action  of 
ejectment,  by  reason  of  a  claim  of  title  instituted  under  the  statute  by  defend- 
ant is  nevertheless  required  to  file  security  for  costs. 

April  Term,  1845. 

MOTION  by  defendant  that  plaintiff  file  security  for  costs  in 
this  cause. 

The  defendant,  William  Wright,  served  on  plaintiff,  Ro- 
clolphus  E.  Northrop,  a  claim  under  the  act  entitled,  "  Pro- 
ceedings to  compel  the  determination  of  claims  to  real  property 
in  certain  cases,"  part  3,  chapter  5,  title  2,  of  the  Revised  Stat- 
utes, on  the  24th  December,  1833.  On  the  9th  August,  1843, 
an  order  was  made  by  this  court  as  follows : 

"  William  Wright,  demandant  agt.  Rodolphus  E.  Northrop, 
claimant.  On  motion  on  the  part  of  the  demandant,  ordered 
that  the  default  of  said  Rodolphus  be  and  the  same  is  hereby 
entered,  with  leave  to  claimant  to  commence  an  action  of 


146  NEW-YORK  PRACTICE  REPORTS. 

Northrop  agt  "Wright. 

ejectment  under  the  statute  within  twenty  days  after  service 
of  notice  of  this  rule." 

In  pursuance  of  said  rule  a  declaration  was  filed  on  the  8th 
September,  1834,  and  a  copy  served.  On  the  23d  of  Sep- 
tember aforesaid,  a  plea  was  served.  The  cause  was  several 
•nes  noticed,  and  finally  tried  at  the  circuit  on  the  27th 
darch,  1837,  and  a  verdict  rendered  for  the  claimant,  Rodol- 
phus  E.  Northrop,  for  an  undivided  part  of  the  premises  as 
claimed  in  the  declaration.  Wright,  the  demandant,  made  a 
case  and  brought  it  before  this  court,  which  was  decided  at 
July  term,  1841 :  new  trial  denied.  Judgment  was  docketed 
against  Wright  for  the  amount  of  the  verdict  and  costs,  which 
was  by  Wright,  on  the  bill  of  exceptions,  carried  to  the  court 
of  errors,  and  was  decided  in  that  court  on  the  26th  December, 
1844:  judgment  re  versed  and  venire  de  novo  directed  to  issue, 
costs  to  abide  event.  Northrop  insisted  he  should  not  be  re- 
quired to  file  security  for  costs,  for  the  reason  that  he  had 

acted  on  the  defensive  ;  that  all  the  proceedings  on 
[*147]  his  part  *had  arisen  out  of  the  demand  made  by 

Wright.  Wright  showed  that  the  plaintiff,  Northrop, 
at  the  time  of  the  commencement  of  this  suit  and  ever  since, 
had  been  and  then  was  a  non-resident  of  this  state,  and  a  resi- 
dent of  the  state  of  Connecticut ;  and  insisted  that  under  the 
circumstances  of  this  case,  the  costs  having  accumulated  to  a 
large  amount,  a  bond  for  more  than  $250  should  be  required 
of  plaintiff.  The  plaintiff,  in  reply,  insisted  that  the  practice 
had  been  uniform,  and  no  more  than  what  the  statute  required, 
had  ever  been  ordered  to  be  given. 

N.  B.  BLUNT,  defendant's  counsel 
JONATHAN  MILLER,  defendant's  attorney. 
J.  EDWARDS,  plaintiff's  counsel. 
WILLIAM  S.  SEARS,  plaintiff's  attorney. 

BRONSON,  Chief  Justice.  Considered  it  the  ordinary  case 
for  security  for  costs,  and  refused  to  increase  the  amount. 

The  usual  order  entered  for  plaintiff  to  file  security  for 
costs,  absolute. 


NEW-YORK  PRACTICE  REPORTS.  147 

Schennerhorn  agt.  Jones. 


ALFRED  SCHERMERHORN  and  EDWIN  DELANO  agt.  LOREN 

JONES. 

JOEL  N".  HAYES  and  JOHN  S.  HEYER  agt.  SAME. 

Where  the  defendant  bought  goods  of  plaintiflfe  on  credit,  and  soon  after  the 
credit  expired,  defendant  requested  a  compromise  with  the  plaintiffs  and  other 
creditors,  and  the  plaintiffs  sued  the  defendant  in  trover,  and  held  him  to  bail, 
on  the  ground  that  defendant  obtained  possession  of  plaintiffs'  property  by 
fraud  and  without  right,  these  facts  sufficiently  appearing.  On  a  motion  by 
defendant  to  be  discharged  on  common  bail,  on  the  ground  that  the  cause  of 
action  was  contract,  it  was  held  that  the  fraud  destroyed  the  contract,  and 
bail  was  ordered. 

April  Term,  1845. 

MOTION  by  defendant  to  vacate  the  orders  of  John  "W.  Ed- 
monds, Esq.,  circuit  judge  of  the  first  circuit,  granted  in  the 
above  entitled  causes  severally,  on  the  26th  February,  1845  ; 
one  of  which  was,  to  discharge  the  order  requiring  plaintiffs 
to  show  cause  of  action,  and  the  other,  to  mitigate  defendant's 
bail,  and  requiring  him  to  give  bail  in  the  sum  of  $1,400. 

These  suits  were  commenced  by  capias,  in  trover,  and  an 
order  indorsed,  requiring  defendant  to  be  held  to  bail  in  each 
cause  in  the  sum  of  $1,600.  On  the  24th  February,  Edmonds, 
circuit  judge  of  first  circuit,  granted  an  order  in  each  cause, 
requiring  plaintiffs  to  show  cause  why  defendant  should  not 
be  discharged  on  common  bail,  and  if  cause  of  action  shown, 
then  why  the  amount  of  bail  should  not  be  mitigated.  Cause 
of  action  having  been  shown  in  pursuance  of  said  orders,  said 
circuit  judge,  on  the  26th  February,  granted  an  order  vacating 
and  discharging  the  orders  made  on  the  24th  February,  and 
granted  another  order,  mitigating  and  reducing  the  amount  of 
defendant's  bail  to  $1,400.  Said  Edmonds,  circuit  judge, 
upon  granting  the  last-mentioned  orders,  gave  the  following 
opinion  in  writing : 

^(Titles  of  the  causes.)     "  In   September  last,   the     [*148] 
defendant,  who  resided  at  Buffalo,  purchased  of  the 
plaintiffs  in  this  city,  (New-York,)  sundry  bills  of  goods  ^n 


148  NEW-YORK  PRACTICE  REPORTS. 

Schermerhorn  agt.  Jones. 

time,  upon  representations  that  he  was  solvent.  When  the  bills 
became  due,  it  was  found  that  he  was  utterly  bankrupt,  and  it 
is  alleged  that  his  purchases  were  a  fraud  upon  the  plaintiffs,  and 
that  fact  is,  by  the  affidavits  and  admissions  of  the  defendant, 
clearly  made  out.  Under  these  circumstances,  the  plaintiffs 
disaffirmed  the  contract  of  sale,  and  brought  suits  against  him 
in  trover,  held  him  to  bail  and  he  was  arrested  by  the  sheriff 
of  New-York,  from  whose  custody  he  now  seeks  to  be  dis- 
charged. The  circuit  judge  rules  that  the  fraud  vitiates  the 
contract  of  sale  entirely,  and  that  the  defendant  having  ob- 
tained possession  of  the  property  of  the  plaintiffs  without 
right,  and  having  refused  to  return  it,  or  to  make  compensa- 
tion for  it,  he  was  guilty  of  a  wrong  for  which  he  might  be 
held  to  bail.  That  the  claim  of  the  plaintiffs  is  in  no  respect 
founded  upon  the  contract,  but  upon  the  fraud  by  means  of 
which  he  obtained  the  plaintiffs'  goods,  and  in  that  respect  is 
materially  different  from  the  case  of  Brown  agt.  Treat  &  Car- 
ter, in  1  Hill  In  that  case  the  form  of  the  count  only  was 
changed,  the  nature  of  the  contract  remaining  the  same  ;  but 
in  this  case  the  whole  matter  is  changed  from  a  contract  to  a 
fraud,  not  in  form  only,  but  in  fact.  The  order  to  show  cause 
of  action,  is  therefore  discharged." 

K  B.  BLUNT,  defendants  counsel. 

A.  L.  BROWN,  defendants  attorney 

M.  GK  HARRINGTON,  plaintiffs'  attorney. 

BRONSON,  Chief  Justice.  Held  that  the  fraud  destroyed 
the  contract,  and  being  a  proper  case  for  bail,  denied  the  mo- 
tion with  costs. 

Rule  accordingly. 


NEW-YORK  PRACTICE  REPORTS.  148 

Smith  agt.  Frizell. 


GERRIT  SMITH  agt.  HENRY  FRIZELL  et  al 

A  writ  of  replevin  will  be  amended  on  terms,  by  changing  it  from  cepii  and  de- 
tinet  to  detinet  alone,  after  the  execution  and  appearance  by  defendant,  where 
it  appeared  the  attorney  issued  it,  misapprehending  the  state  of  facts  in  the 
case. 

April  Term,  1845. 

MOTION  by  plaintiff"  for  leave  to  amend  the  -writ  of  replevin, 
which  was  issued  and  executed  in  this  cause,  by  striking  out 
the  words  imputing  an  unlawful  taking,  to  wit,  "  hath  taken 
and," — changing  it  from  cepit  and  detinet  to  detinet  alone. 

Plaintiff's  attorney  issued  the  writ  of  replevin  for  cepit  and 
detinet,  upon  information  which  he  supposed  warranted  it,  but 
subsequently  ascertained  that  it  should  have  been  issued  for 
detinet  alone,  in  order  to  meet  the  facts  of  the  case. 
Defendant's  counsel  *supposed  that  a  writ  issued  [*149] 
intentionally  cepit  and  detinet  could  not  be  amended 
under  the  rule;  that  the  decisions  went  to  show  that  such 
amendments  would  be  allowed  only  where  it  was  shown  to 
be  a  clerical  mistake  in  drawing  the  writ.  It  was  shown  that 
the  defendants  had  appeared,  bat  the  plaintiff  had  not  de- 
clared. 

A.  C.  HAND,  plaintiffs  counsel  ana  attorney. 
M.  T.  REYNOLDS,  defendants'  counsel. 
C.  F.  TABOR,  defendants'  attorney. 

BRONSON,  Chief  Justice.  Thought  the  amendment  should 
be  allowed  under  the  general  rule ;  and  granted  the  motion  on 
payment  of  $7  costs  of  opposing  the  motion,  and  giving  a  new 
replevin  bond  nunc  pro  tune,  and  the  sureties  therein  justify- 
ing, provided  the  form  of  the  existing  bond  be  such  that  it 
will  not  be  adapted  to  the  amended  writ. 


149  NEW-YORK  PRACTICE  REPORTS. 

Rusk  agt.  Van  Benschoten. 


EMMET  RUSK  agt.  GEORGE  Van  BENSCHOTEN,  Impleaded  with 
HEODORE  CAINE. 

The  court  do  not  inquire  into  parts  of  day  on  filing  and  service  of  a  declaration. 
Service  before  filing  on  the  same  day  held  good. 

April  Term,  1845. 

MOTION  by  defendant  Van  Benschoten  to  set  aside  judg- 
ment and  execution  in  this  cause,  so  far  as  relates  to  property 
of  Van  Benschoten. 

The  defendants  were  partners  in  business  in  the  city  of 
New-York.  On  the  morning  of  the  24th  January  last,  dec- 
laration was  served  on  defendant  Caine,  who  thereupon  gave 
a  cognovit  for  the  amount  of  plaintiff's  claim  against  defend- 
ants, with  a  consent  that  execution  might  issue  forthwith. 
On  the  same  day,  and  at  the  same  time,  a  declaration  was  filed, 
judgment  was  entered  up,  filed  and  docketed,  and  execution 
issued  and  levy  made  upon  the  joint  property  of  both  defend- 
ants. The  declaration  was  served  before  it  was  filed;  but 
the  service  and  filing  occurred  on  the  same  day.  The  main 
question  was,  whether  the  suit  could  be  said  to  have  been 
commenced  in  this  way. 

N.  B.  BLUNT,  defendants'  counsel. 
A.  L.  BROWN,  defendants'  attorney. 
N.  HILL,  JR.,  plaintiff's  counsel. 
A.  U.  LYON,  plaintiff's  attoi-ney. 

BRONSON,  Chief  Justice.  Said  they  did  not  inquire  into 
the  parts  of  a  day  on  service  and  filing  a  declaration.  The 
motion  must  be  denied. 

Rule  accordingly. 


NEW-YORK  PRACTICE  REPORTS.  149 

In  the  matter  of  Russell. 


In  the  matter  of  ABRAHAM  D.  RUSSELL  on  complaint  of 
GRAHAM  B.  HOAG. 

An  attorney  has  a  lien  upon  the  papers  in  his  client's  cause,  until  all  his  costs 
are  paid.  Where  there  is  a  dispute  about  the  amount  of  such  costs,  it  is  a 
proper  subject  of  reference,  which  must  be  decided  before  the  attorney  is 
bound  to  deliver  up  the  papers. 

*MoTioisr  on  the  part  of  complainant,  that  Abra-     [*150] 
ham  D.  Russell,  Esq.,  deliver  up  to  said  Hoag  a  cer- 
tain bill  of  exceptions  and  papers  taken  on  the  trial  of  Alex- 
ander Hoag. 

In  this  matter  Russell  was  employed  as  counsel  for  Alex- 
ander Hoag,  who  was  committed  for  felony ;  a  trial  was  had 
before  the  general  sessions  of  the  peace  in  the  city  of  New- 
York,  on  the  15th  December,  1843  ;  defendant  was  convicted ; 
Russell  took  exceptions,  and  procured  a  certificate  to  stay  ex- 
ecution, and  removed  the  cause  into  this  court  by  writ  of 
error.  At  the  May  term,  1844,  of  this  court,  the  bill  of  ex- 
ceptions was  argued  before  this  court,  and  a  decision  made 
reversing  the  judgment  of  the  general  sessions  of  the  peace. 
On  the  5th  August,  1844,  a  second  trial  was  had  before  said 
general  sessions,  which  resulted  in  a  verdict  of  conviction  of 
said  defendant  Hoag ;  upon  which  trial  exceptions  were  again 
taken  by  said  Russell,  which  were  settled  and  sealed.  In 
consequence  of  the  escape  of  said  Hoag  from  prison,  the  ex- 
ceptions were  not  filed,  but  were  then  in  possession  of  said 
Russell.  After  Hoag  was  retaken  and  confined  in  prison, 
Russell  took  no  further  steps  in  the  matter,  in  consequence 
of  information  received  from  said  defendant,  Hoag,  that  he 
did  not  wish  it.  Hoag  was  sentenced  to  state's  prison  for 
five  years.  In  January  last,  Graham  B.  Hoag  requested  the 
exceptions  delivered  to  him,  which  was  refused,  unless  he  paid 
a  balance  of  costs  which  Russell  claimed,  of  $50.  Graham  B. 
Hoag  alleged  he  had  paid  said  Russell,  and  David  Graham, 
the  associate  counsel,  subsequent  to  the  first  trial,  $687.50, 
excepting  $40,  which  was  paid  previously  ;  and  that  William 


150  NEW-YORK  PRACTICE  REPORTS. 

Rathbun  agt.  "Woodworth. 

Hoag,  another  brother,  paid  to  said  Russell  and  Graham,  $200, 
for  services  on  the  first  trial,  not  included  in  the  above 
amount. 

JR.  F.  WINSLOW,  complainants  counsel  and  attorney. 
A.  D.  RUSSELL,  counsel  and  attorney  in  pro.  per. 

BRONSON,  Chief  Justice.  This  is  a  proper  matter  for  refer- 
ence, to  ascertain  what  amount  ol  costs,  if  any,  are  due  to  Mr. 
Russell.  He  has  a  lien,  as  attorney,  upon  the  papers,  until  all 
his  costs  are  paid. 

Decision. —  Ordered,  That  the  complaint  be  referred  to  "Wil- 
liam P.  Hallett,  Esq.,  clerk  of  this  court,  to  ascertain  if  any, 
and  what  amount  is  due  said  Russell  for  his  costs  and  fees,  for 
his  services  in  defending  Alexander  Hoag ;  and  if  said  Hallett 
shall  be  of  opinion  that  there  is  nothing  due  to  said  Russell 
for  his  said  services,  then,  that  said  Russell  be,  and  he  is 
hereby  ordered  to  deliver  to  said  Graham  B.  Hoag,  or  to 
Robert  F.  Winslow,  the  counsel  employed  by  him,  the  said 
bill  of  exceptions ;  and  if  said  Hallett  shall  be  of  opinion 
that  any  costs  or  fees  tire  due  to  said  Russell,  then 
[*151]  *that  said  Russell  deliver  to  said  Graham  B.  Hoag, 
or  to  said  counsel  employed  by  him,  the  said  bill  of 
exceptions,  on  payment  to  him  of  the  amount  so  in  the  opinion 
of  said  Hallett  due  to  said  Russell. 


WELLS  RATHBUN  agt.  JOHN  R.  WOODWORTH  et  al 
FREDERICK  J.  BARNARD  et  al.  agt.  THE  SAME. 

It  seems  where  a  sheriff  has  two  executions  on  two  different  judgments,  bearing 
different  dates,  against  the  same  defendants,  both  owned  by  the  same  plain- 
tiffs, and  the  sale  of  all  the  available  property  of  defendants  is  applied  on  the 
second  execution  by  order  of  plaintiffs,  that  the  sheriff  is  not  entitled  to  any 
fees  on  the  first  execution,  nothing  having  been  done  under  it. 


NEW-YORK  PRACTICE  REPORTS.  151 

Rathbun  agt.  Woodworth. 

April  Term,  1845. 

MOTION  by  plaintiffs,  in  the  second  suit,  for  a  retaxation  of 
costs. 

On  the  12th  of  July,  1843,  the  plaintiffs  in  the  second  judg- 
ment purchased  the  first  judgment,  upon  which  an  execution 
had  previously  been  issued,  and  was  then  in  the  hands  of  the 
sheriff  of  Oneida  county.  On  the  21st  of  August  an  execu- 
tion was  issued  on  the  judgment  in  the  second  above  entitled 
cause,  and  delivered  to  a  deputy  sheriff  of  Oneida  county.  On 
the  1st  of  September  following,  all  the  defendant's  personal 
property  was  sold  ;  and  the  •  proceeds,  after  deducting  the 
sheriff's  fees  thereon,  were  applied  to  the  payment  of  the 
second  execution,  at  the  request  and  by  the  direction  of  the 
Barnards,  plaintiffs  in  the  second  suit,  they  being  the  owners 
of  both  judgments.  The  defendant's  real  estate  was  not  sold, 
in  consequence  of  prior  incumb ranees  upon  it,  which  the  Bar- 
nards deemed  more  in  amount  than  what  said  real  estate 
would  sell  for.  The  whole  amount  of  the  first  judgment  was 
claimed  by  the  Barnards  to  be  due  and  unpaid.  On  the  14th 
of  May,  1844,  F.  J.  Barnard,  one  of  the  plaintiffs  in  the  second 
suit,  was  served  with  copy  bill  of  costs  and  notice  of  taxation 
by  Matteson  &  Doolittle,  attorneys  for  the  sheriff  of  Oneida, 
on  whose  behalf  said  costs  were  to  be  taxed.  The  attorneys 
for  the  Barnards  did  not  oppose  the  taxation,  for  various  ex- 
cuses given,  which  they  stated :  one  was,  the  delay  in  pro- 
curing the  affidavit  of  F.  J.  Barnard ;  and  in  February  last 
they  applied  to  Matteson  &  Doolittle  to  allow  them  to  oppose 
the  taxation,  which  they  refused  on  the  ground  of  the  length 
of  time  which  had  elapsed  from  the  taxation.  The  costs,  as 
made  out  in  the  bill,  were  for  sheriff 's  fees  and  poundage  on 
the^./a  issued  in  the  first  cause  for  $5,000  debt  and  $16.17 
damages,  and  costs  amounting  to  $77.43.  The  counsel  for 
the  Barnards  insisted  that  the  claim  of  the  sheriff  was  illegal 
and  unjust ;  he  having  received  all  the  fees  to  which 
he  was  entitled  *on  the  second  execution,  there  hav-  [*152] 
ing  been  nothing  done  with  the  first,  for  want  of  prop- 
erty of  defendants  to  collect  any  part  of  it. 


152  NEW-YORK  PRACTICE  REPORTS. 

Brown  agt.  Brings. 

I.  HARRIS,  counsel  for  Barnard. 

HARRIS  &  SHEPHARD,  attorneys  for  Barnard. 

MR.  TALCOTT,  counsel  for  sheriff. 

MATTESON  &  DOOLITTLE,  attorneys  for  sheriff. 

BRONSON,  Chief  Justice.  Ordered  a  relaxation,  on  pay- 
ment of  costs  of  opposing  this  motion  ($7.00)  and  costs  of  re- 
taxation. 

Rule  accordingly. 


ELIJAH  H.  BROWN  agt.  WILLARD  H.  BRIGGS,  Sheriff  of 
"Westchester  county. 

A  demurrer  served  within  twenty  days,  by  putting  the  same  in  the  post-office 
according  to  the  rule,  and  paying  postage  thereon,  is  good  service,  notwith- 
standing it  is  not  received  by  the  attorney  to  whom  it  is  directed  until  the 
twenty  days  have  expired. 

April  Term,  1845. 

MOTION  by  defendant  to  set  aside  default  and  subsequent 
proceedings,  for  irregularity. 

Declaration  was  served  on  defendant  on  the  27th  of  Feb- 
ruary last.  Defendant  interposed  a  special  demurrer  to  the 
declaration,  and  served  a  copy  thereof  on  plaintiff's  attorney, 
by  inclosing  the  same  in  an  envelope,  and  directing  it  to 
William  D.  Craft,  Esq.,  plaintiff's  attorney,  at  the  city  of 
New- York ;  paying  the  postage  thereon,  and  mailing  the  same 
at  the  post-office  in  the  town  of  White  Plains,  on  the  18th 
March  last,  being  within  twenty  days  from  the  time  of  service 
of  said  declaration.  On  the  20th  of  March  aforesaid,  plain- 
tiff's attorney  entered  defendant's  default  for  not  pleading, 
and  a  rule  for  a  writ  of  inquiry  to  issue.  In  the  afternoon 
of  the  said  20th  of  March,  and  after  the  entry  of  the  said 
default  and  rule,  plaintiff's  attorney  received  through  the 
mail  a  copy  demurrer ;  and  supposing  that  such  service  was 


NEW-YORK  PRACTICE  REPORTS.  152 

Davis  agt.  "Weyburn. 

not  sufficient  according  to  the  rules  and  practice  of  this  court, 
and  that  such  pleading  was  frivolous  and  intended  for  delay, 
he  inclosed  the  same  to  defendant's  attorney  on  the  same  day, 
stating  that  it  came  too  late,  with  other  objections :  not  hav- 
ing accepted  the  demurrer  of  defendant,  he  did  not  give  him 
notice  of  executing  a  writ  of  inquiry. 

M.  T.  KEYNOLDS,  defendants  counsel 
M.  MITCHELL,  defendants  attorney. 
A.  TABER,  plaintiff's  counsel. 
W.  D.  CRAFT,  plaintiff's  attorney. 

BRONSON,  Chief  Justice.  The  plaintiff's  attorney  supposed 
he  must  have  received  the  demurrer  within  the  twenty  days, 
in  order  to  have  the  service  good :  in  that  he  was  mistaken. 
The  demurrer  having  been  properly  served,  the  default  must 
be  set  aside.  Motion  granted  with  costs. 


*ABNER  DAVIS  et  al  agt.  ALFRED  W.  WEYBURN    [*153~ 
and  GEORGE  WEYBURN. 

Where  a  sheriff  makes  an  evasive  return  on  an  execution,  so  that  the  plaintiffs 
cannot  safely  proceed  against  him  in  an  action  for  a  false  return,  he  will  be 
required  to  perfect  his  return  according  to  the  facts  of  the  case,  even  though 
the  time  for  bringing  an  action  by  statute  has  expired  since  the  date  of  the 
return.  The  execution  itself  having  been  returned  and  filed  within  a  few 
months. 

April  Term,  1845. 

MOTION  by  plaintiffs  for  an  order  requiring  a  late  sheriff  to 
make  a  farther  return  to  an  execution,  according  to  the  truth  of 
the  case. 

Judgment  was  recovered  in  this  cause  October  16, 1837,  for 
$1,976.88,  damages  and  costs.  On  or  about  the  same  day,  a 
testatum  fi.fa.  was  issued  thereon  to  the  sheriff  of  Chemung, 
where  defendants  then  resided.  The  plaintiffs  received  from 


153  NEW-YORK  PRACTICE  REPORTS. 

Davis  agt.  "Weyburn. 

said  sheriff,  for  moneys  collected  on  said  fi.  fa.,  $550  only, 
leaving  the  balance  of  the  judgment  unpaid.     Plaintiff's  at- 
torney ruled  the  sheriff  to  return  the  ft.  fa.,  and  on  the  14th 
of  December  last  the  sheriff  returned  the  same,  with  a  return 
indorsed  thereon  as  follows :  "  (Title  of  the  cause),  fi.  fa. 
Duteher  &  Harris,  attorneys.     Levy  $1,976.88  and  interest 
from  the  16th  of  October,  1837.     Sheriff  fees,  &c.     Levied 
October  22d,  1837 :  one  brown  mare,  one  sorrel  horse,  and 
two-horse  harness  and  wagon,  and  three  cows,  now  in  posses- 
sion of  George  Weyburn ;  also  one  pleasure  buggy -wagon  and 
harness,  and  two-horse  wagon  and  harness,  now  in  posses- 
sion of  A.  W.  Weyburn :  and  two  cast  iron  plows,  and  two 
iron  tooth  drags,  and  on  all  their  right  and  interest  of  both 
the  defendants  in  and   to  all  their  real  estate  in  the  town  of 
Southport;   levied  October  the  22d,  1837.     John  Jackson, 
sheriff,  by  E.  B.  Tuthill,  deputy.     A  general  levy  on  all  the 
defendant's  personal  property  that  is  liable  to  execution.     I 
sold  the  personal  property  specified  in  the  annexed  levy,  and 
made  the  sum  of  six  hundred  and  twenty-eight  dollars  and 
eighty-three  cents,  deposited  the  money  in  the  Chemung  Canal 
Bank,  and  sent  the  plaintiff  a  certificate  of  the  deposit  of  the 
same  July  the  27th,  1838.     The  real  estate  of  the  defendants 
I  advertised  for  sale,  notified  the  plaintiffs  of  the  day  of  sale, 
they  did  not  attend,  and  offered  the  same  for  sale  on  the  day 
and  hour  appointed,  but  could  not  get  any  bidders,  the  said 
real  estate  being  incumbered  by  an  older  judgment  for  more 
than  its  value.    Dated  September  the  10th,  1838.    John  Jack- 
son, sheriff,  by  E.  B.  Tuthill,  deputy."     The  plaintiffs  alleged 
that  they  were  desirous  of  bringing,  and  intended  to  bring,  an 
action  against  the  sheriff  for  a  false  return,  for  not  levying  and 
collecting  the  full  amount  of  the  execution;  and  that  they 
could  not  safely  proceed  against  him  on  the  return  made  by 
him  to  said  execution,  on  account  of  the  evasive  and  uncertain 
character  of  said  return ;    and  they  moved  that  the  sheriff 

make  a  further  return,  that  the  defendants  had  no 
[*154]     goods  or  chattels,  lands  or  tenements  in  his  *bailiwick, 

whereof  he  could  levy  or  collect  the  balance  of  the 


NEW-YORK  PRACTICE  REPORTS.  154 

Wiles  agt.  Jones. 

said  execution,  or  any  part  thereof;  or  otherwise,  according 
to  the  truth  of  the  case.  The  sheriff  opposed  the  motion  on 
the  ground,  that  the  plaintiffs  ought  not  to  compel  a  return 
after  the  time  of  bringing  an  action  had  expired. 

IRA  HARRIS,  plaintiffs',  counsel  and  attorney. 
C.  STEVENS,  sheriffs  counsel. 
A.  K.  GREGG,  sheriff's  attorney. 

BRONSON,  Chief  Justice.     Held  that  the  sheriff,  having  un- 
dertaken to  make  a  returm,  must  perfect  it. 

Decision. — Motion  granted. 


JOHN  I.  WILES,  Assignee,  &c.,  of  LYNDS  JONES,  Sheriff  of 
Montgomery  county  agt.  WILLIAM  M.  HILL  and  three 
others. 

A  plaintiff  cannot  maintain  a  suit  on  a  bond  given  to  the  sheriff  on  the  arrest  of  a 
defendant,  where  it  appears  that  defendant's  attorney  gave  notice  to  plain- 
tiff's attorney  before  the  commencement  of  the  suit,  and  before  special  bail  was 
actually  filed,  that  special  bail  was  put  in  and  filed  in  the  original  action,  al- 
though filed  after  the  twenty  days  conditioned  by  the  bond;  and  plaintiff  'a 
attorney  gave  defendants'  attorney  notice  that  he  should  disregard  the  notice 
of  bail  for  those  reasons,  and  also  for  information  in  the  notice. 

April  Term,  1845. 

MOTION  by  defendants  that  the  bond  assigned  by  said  sher- 
iff, on  which  a  suit  was  depending  between  the  above  parties, 
and  all  the  proceedings  thereon,  be  vacated  and  set  aside  with 
costs. 

This  suit  was  commenced  on  the  30th  January,  1845,  on 
the  bond  given  to  the  sheriff  aforesaid,  on  or  about  the  8th 
January,  1844,  executed  by  two  of  the  defendants ;  on  the  ar- 
rest of  the  other  two  of  the  said  defendants  by  virtue  of  a 
capias  ad  respondendum,  returnable  on  the  9th  January,  1844  ; 
conditioned  that  said  defendants  arrested,  should  appear  and 
put  in  special  bail  in  twenty  days.  On  the  2d  February,  1844, 


154  NEW-YORK  PRACTICE  REPORTS. 

Haight  agt.  Rodgers. 

D.  Holt,  Esq.,  attorney  for  defendant,  served  plaintiff's  attor- 
neys with,  notice  in  writing  of  the  filing  special  bail  therein, 
supposing  the  same  was  then  filed ;  plaintiff's  attorneys  wrote 
to  the  clerk  to  ascertain  when  the  bail  was  filed,  and  received 
answer  that  none  had  been  filed.  On  the  26th  February,  said 
Holt  showed  plaintiff's  attorney  a  letter  from  the  clerk  that 
the  bail  piece  was  filed  on  the  6th  February,  1844 :  and  at  the 
same  time  served  a  notice  in  writing  giving  plaintiff  ten  days 
to  except  to  the  bail,  without  indorsing  the  exception  on  the 
bail  piece.  Plaintiff's  attorneys  informed  defendants'  attorney 
that  they  should  disregard  the  notice,  as  bail  was  not  put  in 

within  the  twenty  days  and  the  notice  served  was  ir- 
[*155]  regular,  and  they  had  already  taken  steps  to  *prose- 

cute  the  sheriff;  afterwards  plaintiff's  attorneys  con- 
cluded to  abandon  the  prosecution  of  the  sheriff  and  proceed 
on  the  bail  bond  in  the  original  action,  which  was  assigned  to 
plaintiff. 

S.  P.  NASH,  defendant's  counsel. 
D.  HOLT,  defendant's  attorney. 
D.  WRIGHT,  plaintiff's  counsel. 
SACIA  &  DAVIS,  plaintiff's  attorneys. 

BRONSON,  Chief  Justice.  Held,  that  the  notice  of  special 
bail,  although  given  by  mistake,  before  the  bail  piece  was  filed, 
was,  under  the  circumstances  sufficient,  and  that  the  plaintiff 
was  irregular  in  suing  the  bail  to  the  sheriff  after  being  in- 
formed that  the  bail  piece  had  in  fact  been  filed. 


STEPHEN  HAIGHT,  plaintiff  in  error  agt.  DANIEL  EODGERS, 
defendant  in  error. 

In  a  case  from  a  justice's  court,  brought  up  and  tried  in  a  common  pleas  on  appeal, 
and  intended  to  be  brought  to  this  court  by  writ  of  error ;  the  certificate  of  the 
presiding  judge,  certifying  that  it  is  a  proper  cause  to  be  removed  into  this 
court,  must  be  obtained  within  the  time  specified  by  statute.  A  writ  of  error 
brought  upon  a  certificate  obtained  after  that  time  has  expired,  will  be  quashed 
with  costs. 


NEW-YORK  PRACTICE  REPORTS.  155 

Haight  agt.  Rodgers. 

April  Term,  1845. 

MOTION  by  defendant  in  error  to  quash  the  writ  of  error 
issued  in  this  cause. 

On  the  ground  that  no  certificate  had  been  obtained  in  due 
time,  according  to  statute  from  the  judge  who  tried  said  cause, 
or  from  any  other  judge  of  the  court  of  the  degree  of  counsel- 
lor at  law  of  the  supreme  court,  who  was  present  at  the  trial 
of  said  cause ;  that  in  his  opinion  said  cause  was  a  proper  one 
to  be  carried  to  the  supreme  court.  This  cause  originated  in 
a  justice's  court.  Action  trespass ;  was  tried  in  October,  1843, 
and  a  verdict  rendered  for  Rodgers,  defendant  in  error.  An 
appeal  was  brought  and  the  case  removed  to  the  Dutchess 
common  pleas.  On  the  17th  February,  1844,  the  cause  was 
tried  and  a  verdict  rendered  for  Rodgers.  On  the  same  day, 
on  motion  of  C.  \>'.  Swift,  Esq.,  attorney  for  Haight,  an  order 
to  stay  proceedings  for  sixty  days,  to  prepare  a  case  or  bill  of 
exceptions,  was  entered  on  the  minutes.  R.  Barnard,  attorney 
for  Rodgers,  went  on  and  perfected  judgment ;  on  the  2d  of 
March,  1844,  and  on  the  28th  March,  served  a  copy  bill  of 
costs  on  attorney  for  Rodgers  with  notice  of  retaxation  for  the 
3d  April,  1844,  regarding  the  order  to  stay  aforesaid,  as  only 
staying  execution.  On  the  18th  of  April,  Swift,  attorney  for 
Haight,  requested  of  Barnard  a  stipulation  to  allow  him  to 
procure  a  certificate  of  the  presiding  judge,  as  none  had  then 
been  obtained  ;  which  Barnard  refused  to  give;  and  on  the 
same  day  Swift  served  Barnard  with  papers  and  no- 
tice of  motion  to  set  aside  the  judgment,  *  which  was  [*156] 
heard  on  the  18th  June,  and  an  order  entered  that 
Haight  have  sixty  days  to  prepare  and  serve  a  bill  of  excep- 
tions or  case,  and  staying  proceedings  for  that  purpose,  and 
also  giving  thirty  days'  time  to  procure  a  certificate  of  the  first 
or  presiding  judge,  nunc  pro  tune  as  of  the  17th  February,  1844, 
and  dated  on  that  day ;  judgment  not  be  set  aside.  On  the 
10th  December,  1844,  Barnard  was  served  with  a  certificate  of 
probable  cause ;  copy  bond  and  affidavit  of  justification  of  bail 
on  the  allowance  of  a  writ  of  error.  Barnard  moved  on  the 

VOL.  L  15 


156  NEW-YORK  PRACTICE  REPORTS. 

Welling  agt  Sweet. 

ground  that  the  certificate  required  of  the  presiding  judge,  was 
not  obtained  within  the  time  required  by  the  statute. 

EOBT.  BARNARD,  counsel  and  attorney  for  defendant  in  error. 
P.  CAGGER,  counsel  for  plaintiff  in  error. 
C.  W.  SWIFT,  attorney  for  plaintiff  in  error. 

BRONSON,  Chief  Justice.  The  certificate  should  have  been 
obtained  within  the  time  prescribed  by  statute ;  the  motion 
must  be  granted  on  that  ground. 

Decision. — Motion  granted  with  costs. 


JAMES  WELLING  et  al.  agt.  ALLEN  S.  SWEET  and  MATTHEW 
C.  HOES,  Impleaded  with  KICHARD  H.  HOES. 

All  the  defendants  must  jein  in  a  motion  to  change  the  venue,  otherwise  they 
must  show  a  reason  why  all  do  not  join. 

April  Term,  1845. 

MOTION  by  defendants  Sweet  and  Matthew  C.  Hoes,  to 
change  the  venue  from  the  county  of  Eensselaer  to  the  city 
and  county  of  New- York. 

The  affidavit  upon  which  the  motion  was  founded  was  signed 
and  sworn  to  by  two  defendants,  to  wit :  Allen  S.  Sweet  and 
Matthew  C.  Hoes.  There  was  no  reason  stated  in  it  why  the 
other  defendant  did  not  join  in  making  the  motion. 

H.  C.  YAN  YoRST,  defendants'  counsel. 
ALEXANDER  S.  KOWLEY,  defendants'  attorney. 
C.  M.  JENKINS,  plaintiffs'  counsel. 
I.  W.  FAIRFIELD,  plaintiffs'  attorney. 

BRONSON,  Chief  Justice.  Denied  the  motion  on  the  ground 
that  no  reason  was  shown  by  the  papers,  why  all  the  defend- 
ants did  not  join  in  the  motion.  By  the  practice  of  this  court, 
a  motion  to  change  the  venue  can  only  be  made  by  all  the  de- 


NEW-YORK  PRACTICE  REPORTS.  156 

Cragin  agt.  Travis. 

fendants,  unless  a  good  reason  is  shown  for  their  not  joining  in 
the  motion,  such  as  one  of  them  has  suffered  a  default,  &c. 

Decision. — Motion  denied  with  costs. 


*BENJAMIN  F.  CRAGIN  agt.  JOSEPH  I.  TRAVIS.    [*157] 

JOSEPH  I.  TRAVIS  agt.  MOSES  CRAGIN,  AARON  CRAGIN,  and 
BENJAMIN  F.  CRAGIN. 

An  attorney  cannot  enforce  the  payment  first  of  his  taxed  costs  against  defend- 
ant, on  a  judgment  in  favor  of  plaintiff,  his  client,  who  is  compelled  to  set  off 
the  judgment  against  one  in  favor  of  the  defendant  against  plaintiff.  He  must 
look  to  his  client  for  costs  in  such  cases,  where  the  amount  of  the  judgment 
is  satisfied  by  the  set-off. 

April  Term,  1845. 

MOTION  by  Joseph  I.  Travis,  plaintiff  in  the  second  cause, 
to  set  off  the  judgment  in  the  first  cause,  or  so  much  thereof 
as  would  be  sufficient  to  satisfy  the  judgment  in  the  second 
cause. 

Travis  recovered  judgment  in  the  second  cause  on  the  4th 
of  May,  1840,  in  assumpsit,  for  $517.03  damages  and  costs ; 
upon  which  there  was  due  on  the  20th  of  March,  1845, 
$676.27,  principal  and  interest.  Benjamin  F.  Cragin,  one  of 
the  defendants  in  the  second  cause,  recovered  a  judgment  on 
the  20th  March,  1845,  against  said  Travis,  in  slander,  for 
$604.17  damages  and  costs,  which  was  unsatisfied,  both  judg- 
ments obtained  in  this  court.  Benjamin  F.  Cragin  signed  a 
consent  to  D.  Brush,  attorney  for  Travis,  that  the  set-off  might 
be  made  as  was  asked  in  the  notice  of  motion,  which  consent 
was  dated  31st  March,  1845.  This  motion  was  opposed  by 
A.  Williams,  Esq.,  attorney  for  Benjamin  F.  Cragin,  on  the 
ground  that  he  claimed  the  amount  of  his  costs,  to  be  first 
paid  out  of  the  judgment  in  the  first  suit  before  set-off;  that 
he  had  given  written  notice  to  Travis,  on  the  17th  February, 


157  NEW-YORK:  PRACTICE  REPORTS. 

Bross  agt.  Nicholson. 

1845,  not  to  settle,  arrange  in  any  manner,  or  pay  the  amount 
of  his  taxable  costs  in  said  first  cause,  as  he  (Williams)  looked 
to  him  (Travis)  personally  therefor.  On  the  20th  March, 
1845,  Williams  served  another  notice  on  Travis,  stating  that 
the  costs  had  been  taxed  at  $204.17,  and  that  they  belonged 
to  him  personally,  and  not  to  the  plaintiff,  and  forbid  said 
Travis  to  pay  the  same,  or  any  part  thereof,  to  the  plaintiff 
(Cragin),  or  to  settle  the  same  with  Cragin  or  any  other  per- 
son other  than  with  him  (Williams).  Williams  offered  to  set 
off  the  amount  of  the  verdict  in  the  first  cause,  against  the 
judgment  in  the  second  cause ;  but  Brush,  attorney  for  Tra- 
vis, refused  to  do  it.  Williams  alleged  Brush  had  procured 
Cragin's  consent  to  the  set-off,  with  a  view  to  defeat  his 
claim  for  costs,  knowing  that  Cragin  was  poor  and  unable 
to  pay. 

N.  HILL,  JR.,  counsel  for  motion,  cited  4  Hill,  559. 
D.  BRUSH,  attorney  for  motion. 
C.  STEVENS,  counsel  opposed. 
A.  WILLIAMS,  attorney  opposed. 

BRONSON,  Chief  Justice.  Decided  that  the  claim  of  the 
attorney  for  costs  had  nothing  to  do  with  the  set-off  between 
the  parties.  He  must  look  to  his  client  for  them. 

Decision. — Motion  granted. 


[*158]    ^STEPHEN  D.  BROSS  agt,  JAMES  B.  NICHOLSON. 

Where  a  plea  is  served  by  mail,  the  whole  postage  must  be  paid.    If  it  appears 
that  part  is  paid  and  part  is  due,  the  service  is  bad. 

April  Term,  1845. 

MOTION  by  defendant  to  set  aside  default  for  not  pleading 
in  this  cause,  and  subsequent  proceedings  for  irregularity. 

Declaration  was  served  28th  January,  1845  ;  plea  and  no- 
tice served  on  the  8th  February ;  and  default  entered  on  the 


NEW-YORK  PRACTICE  REPORTS.  1 5  g 


27th  February  last.  On  the  said  27th  February,  E.  S.  Deny, 
defendant's  attorney,  received  through  the  mail  from  plaintiff's 
attorney,  notice  of  the  execution  of  a  writ  of  inquiry  in  the 
cause,  addressed  to  him  as  defendant's  attorney.  Defendant's 
attorney  filed  the  plea  and  notice  on  the  said  8th  February, 
1845,  and  served  a  copy  thereof  by  depositing  it  in  the  post- 
office,  in  an  envelope,  in  the  city  of  New- York,  directed  to 
plaintiff's  attorney,  at  Goshen,  Orange  county,  and  paying  the 
postage  thereon.  George  Yan  Inwegen,  plaintiff's  attorney, 
states,  that  he  refused  to  take  the  letter  from  the  post-office, 
inclosing  the  plea,  for  the  reason  that  the  postage  had  not  been 
fully  paid.  There  was  postmarked  on  the  letter,  "  Paid  10 ; 
due  10." 

C.  STEVENS,  defendant's  counsel. 

E.  S.  DERBY,  defendants  attorney. 

A.  TABER,  plaintiff'1  s  counsel. 

GEO.  VAN  INWEGEN,  plaintiffs  attorney. 

BRONSON,  Chief  Justice.  Denied  the  motion,  on  the  ground 
that  the  postage  was  not  paid;  part  payment  did  not  come 
within  the  rule. 

Decision. — Motion  denied  with  costs. 


JARED  £.  DODGE  agt.  JOHN  PASSAGE  and  ELISHA  WHIFFLE. 

"Where  judgment  was  obtained  against  two  defendants  on  a  joint  note,  given  for 
the  benefit  of  one  of  them,  and  execution  was  issued  against  both,  and  the 
defendant  who  had  no  interest  in  the  note'  moved  to  compel  the  sheriff  to  col- 
lect it  of  his  co-defendant,  and  it  appeared  that  the  defendant  moving  had 
received  from  his  co-defendant  at  the  time  of  giving  the  note  property  for 
security ;  and  it  also  appearing  that  the  plaintiff  offered  to  assign  the  judg- 
ment to  any  person  the  defendant  moving  should  designate  upon  payment  of 
the  amount,  which  defendant  declined  doing ;  the  motion  was  denied,  with 
costs. 

April  Term,  1845. 

MOTION  on  behalf  of  Passage,  one  of  the  defendants,  for 


158  NEW-YORK  PRACTICE  REPORTS. 

Dodge  agt.  Passage. 

an  order  directing  the  sheriff  of  Allegany  county  to  raise  the 
money  due  upon  the  fi.  fa.  in  his  hands  issued  to  said  cause, 
out  of  the  property  of  the  defendant  Whipple,  or  so  much 
thereof  as  the  personal  property  of  said  Whipple  would 
bring. 

This  judgment  was  obtained  on  a  promissory  note  made  by 
the  defendants  for  the  sole  benefit  of  Whipple.  It  appeared 
from  the  papers  for  the  motion,  that  Whipple  resided 
[*159J  in  Allegany  county,  *and  the  defendant  Passage  in 
Livingston  county ;  that  two  fi.  fa.s  were  issued  on 
the  judgment,  one  to  each  of  said  counties,  and  the  deputy 
sheriff  had  levied  upon  personal  property  of  Whipple's  suf- 
ficient to  satisfy  the  judgment,  and  the  plaintiff  had  notified 
the  sheriff  not  to  collect  any  more  than  his  fees  from  the 
property  of  Whipple. 

On  the  part  of  Dodge,  the  plaintiff,  it  appeared  that  when 
Passage  signed  the  note  upon  which  this  judgment  was  ob- 
tained, he  took  from  Whipple  property  to  secure  him  for 
signing  the  note,  and  had  sufficient  in  his  hands  to  pay  the 
judgment,  and  that  the  property  of  Whipple  levied  upon,  was 
incumbered,  and  plaintiff  did  not  wish  to  involve  himself  in 
difficulty  with  other  persons,  and  declined  to  have  the  sheriff 
go  on  and  sell  the  property  of  Whipple  upon  his  (plaintiff's) 
responsibility.  It  also  appeared  that  Dodge,  the  plaintiff, 
offered  to  assign  the  judgment  to  any  person  Passage  should 
designate,  upon  his  receiving  his  pay  for  the  amount  of  it. 
Judgment  perfected  Nov.  1,  18M. 

P.  GANSEVOORT,  counsel  for  motion. 

E.  P.  WlSNER,  attorney  for  motion. 

E.  W.  PECKHAM,  opposed. 

HASTINGS  &  WILLIAMS,  plaintiff's  attorneys. 

BRONSON,  Chief  Justice.  Denied  the  motion,  on  the  ground 
that  as  appeared  from  the  papers,  Passage  had  received  prop- 
erty of  Whipple  as  security  for  the  demand ;  and  besides,  the 
plaintiff,  Dodge,  had  offered  to  assign  the  judgment  to  any 


NEW-YORK  PRACTICE  REPORTS.  159 

Davis  agt.  "Wiggins. 

person  Passage  might  designate  upon  paying  the  amount 
of  it. 

Decision. — Motion  denied  with  costs. 


EDWIN  DAVIS  agt.  JOHN  WIGGINS,  JR. 

Where  a  defendant  was  discharged  under  the  bankrupt  law,  and  the  plaintiffs 
assignee  issued  a  ca.  sa.  on  a  judgment  against  defendant,  obtained  previous  to 
his  discharge,  the  assignee  not  knowing  of  the  defendant's  discharge :  a  motion 
to  set  aside  the  ca.  sa.  was  granted  with  costs,  on  defendant's  stipulating  not 
to  bring  a  suit  against  plaintiff's  attorney. 

April  Term,  1845. 

Motion  by  defendant  to  set  aside  ca.  sa.  with  costs. 

Judgment  was  obtained  in  the  fall  of  1836  :  execution  was 
issued  and  returned  nulla  bona  in  October,  1838  :  ca.  sa.  was 
issued  and  defendant  arrested  on  or  about  21st  March,  1845  : 
the  judgment  was  assigned  to  one  William  Wright :  on  the 
llth  August,  1843,  the  defendant  was  discharged  under  the 
bankrupt  law,  passed  August  19th,  1841 ;  a  copy  of  his  dis- 
charge was  set  forth  in  the  papers  for  the  motion.  The  assignee 
Wright  alleged  he  did  not  know  of  the  defendant's 
discharge  in  bankruptcy,  when  the  ca.  sa.  *was  issued,  [*160] 
and  that  he  had  never  received  any  notice  as  a  cred- 
itor of  defendant,  on  his  application  to  be  discharged. 

F.  H.  HASTINGS,  defendants  counsel. 
IRA  BELLOWS,  defendants  attorney. 
N.  HILL.  JR.,  plaintiff 'a  counsel. 
C.  B.  GAY,  plaintiff  Js  attorney. 

BRONSON,  Chief  Justice.  Granted  the  motion,  on  condition 
that  the  defendant  would  not  bring  an  action  against  the  at- 
torney, who  issued  the  ca.  sa. 

Decision. — Motion  granted  with  costs,  on  defendant's  stipu- 
lating not  to  bring  an  action  against  plaintiff's  attorney. 


160  NEW-YORK  PRACTICE  REPORTS. 

The  People  agt.  Cotes. 


THE  PEOPLE  ex  rel.  SARAH  M.  KIRKHAM,  executrix,  &c.,  of 
SAMUEL  KIRKHAM,  deceased  agt.  JOHN  COTES  and  EARL 
KIDDER,  the  commissioners  for  loaning  certain  moneys  of 
the  United  States,  of  the  county  of  Genesee. 

Where  commissioners  for  loaning  certain  moneys  of  the  United  States,  deposited 
with  the  state  of  New- York  for  safe  keeping,  under  the  act  of  4th  April,  1837, 
sold  land  on  a  mortgage  to  them,  and  on  the  sale  there  was  a  surplus,  and  the 
executrix  of  the  mortgagor's  assignee  demanded  said  surplus :  the  commis- 
sioners refused  to  pay  the  surplus  to  such  executrix ;  it  appearing  that  the 
commissioners  had  no  actual  notice  of  the  conveyance  by  the  mortgagor  before 
the  sale,  but  had  such  notice  while  the  surplus  was  in  their  hands  after  the 
sale.  An  alternative  mandamus  was  allowed  against  said  commissioners,  to 
pay  over  the  surplus  to  the  executrix,  or  show  cause,  &c. 

April  Term,  1845. 

THIS  was  a  motion  ex  parte,  on  behalf  of  Sarah  M.  Kirkham, 
executrix  of  Samuel  Kirkham,  deceased,  for  a  mandamus,  to 
compel  the  said  commissioners  to  pay  over  certain  surplus 
monej'S  in  their  hands,  or  which  they  had  received,  on  the 
sale  of  property,  mortgaged  by  the  assignor  of  said  Kirkham, 
deceased,  to  said  commissioners,  upon  the  following  facts : 
Chauncey  Kirkham  mortgaged  to  said  commissioners,  on  the 
21st  of  July,  1837,  a  certain  piece  of  land  in  Batavia  village, 
to  secure  the  payment  of  $220  and  interest,  pursuant  to  the 
provisions  of  the  act  of  the  legislature,  entitled  "An  act 
authorizing  a  loan  of  certain  moneys  belonging  to  the  United 
States,  deposited  with  the  state  of  New-York  for  safe  keeping," 
passed  April  4th,  1837.  On  the  18th  of  October,  1837, 
Chauncey  Kirkham  and  his  wife,  conveyed  the  same  land,  so 
mortgaged  (together  with  other  lands),  to'  Samuel  Kirkham, 
then  of  the  city  of  New  York,  by  warranty  deed,  for  the  con- 
sideration of  $750,  which  deed  was  duly  recorded  in  the  clerk's 
office  of  Genesee  county,  on  the  23d  of  October,  1837.  On  or 
about  the  10th  May,  1843,  Samuel  Kirkham  died,  leaving  his 
last  will  and  testament,  and  a  codicil  thereto,  by  which  he  ap- 
pointed Sarah  M.  Kirkham,  his  wife,  executrix,  whereby 


NEW-YORK  PRACTICE  REPORTS. 
The  People  agt.  Cotes. 

r—   _.i .  . __ . 

she  was  directed  to  *pay  the  debts,  of  the  deceased,  •  [*161] 
and  by  which  she  became  entitled  to  the  care,  cus- 
tody and  control  of  all  -the  real  and  personal  estate  of  the  tes- 
tator; which  will  and  the  codicil  thereto  was  duly  proved 
before  the  surrogate  of  the  county  of  New- York,  on  the  2d 
day  of  June,  1843.  Letters  testamentary  were  granted  and 
issued  by  the  surrogate  to  said  Sarah  M.  Kirkham,  as  such 
executrix.  Default  having  been  made  in  the  payment  ol 
moneys  due  on  the  mortgage  to. said  commissioners  in  October, 

1843,  the  land  in  said  mortgage  described,  was  sold,  in  pur- 
suance of  the  act  aforesaid,  on  the  first  Tuesday  of  February, 

1844,  and  bid  off  by  one  Levi  Otis,  for  a  sum  exceeding  the 
whole  amount  of  principal  and  interest  due  upon  said  mort- 
gage, and  the  costs  of  sale,  by  the  sum  of  $74.83,  which  re- 
mained in  the  hands  of  the  said  commissioners  as  surplus. 
The  commissioners,  at  or  about  the  time  of  such  sale,  were 
informed  that  said  land  had  been  conveyed  as  aforesaid,  by 
said  Chauncey  Kirkham,  and  that  his  grantee  was  dead,  and 
had  left  a  will,  and  that  Sarah  M.  Kirkham,  was  the  lawful 
executrix.     On  the  26th  February,  1844,  and  while  the  sur- 
plus money  was  in  the  hands  of  the  commissioners,  Samuel  C. 
.Holden,  for  and  on  behalf  of  said  executrix,  presented  to  said 
commissioners  an  order  for  such  surplus  money,  made  and 
signed  by  said  executrix,  and  demanded  of  them  the  said  sur- 
plus in  the  name  and  on  behalf  of  the  said  executrix,  which 
they  refused  to  pay  over ;  and  that  while  such  surplus  money 
was  in  the  hands  of  the  said  commissioners,  they  had  actual 
notice  of  such  conveyance  and  one  of  them  saw  and  examined 
the  record  thereof;  they  also  had  actual  notice  of  the  fact  of  the 
decease  of  said  Samuel  Kirkham,  and  of  the  appointment  of  his 
wife,  Sarah  M.  Kirkham,  as  executrix,  &c.     On  the  23d  of 
March,  1844,  the  commissioners  paid  over  said  surplus  money 
to  Chauncey  Kirkham,  on  his  giving  them  a  bond  of  indemnity. 

A.  TABER,  counsel  for  relator. 
J.  L.  BROWN,  attorney  for  relator. 

The  main  question  arose  under  the  3Qth  section  of  the  act 


NEW-YORK  PRACTICE  REPORTS. 
Chemung  Canal  Bank  agt.  the  Supervisors  of  Chemung. 

of  the  4th  of  April,  1837.  No  notice  was  served,  as  required 
by  that  section  ;  but  while  the  surplus  was  in  the  hands  of  the 
commissioners,  they  had  actual  notice  of  all  the  facts,  and  an 
order  for  the  surplus  was  presented,  and  the  money  demanded. 

BRONSON,  Chief  Justice.      Allowed  an  alternative  man- 
damus. 


[*162]    *THE  PRESIDENT,  &c.,  of  the  Chemung  Canal  Bank 
agt.  THE  BOARD  OF  SUPERVISORS  of  the  county  of 
Chemung. 

A  statement  in  an  affidavit  made  for  a  motion  to  change  the  venue,  that  the 
defendant  has  a  good  and  substantial  defence  upon  the  merits  to  the  whole  or 
some  part  of  plaintiffs'  demand,  is  bad.  Motion  will  be  denied  with  costs. 

April  Term,  1845. 

MOTION  by  defendants  to  change  the  venue  in  this  cause 
from  the  county  of  Oneida  to  the  county  of  Chemung. 

John  W.  "Wisner,  chairman  of  the  board  of  supervisors, 
made  the  affidavit  upon  which  the  motion  was  founded,  and 
that  part  which  stated  the  merits  of  the  defendants,  read  as 
follows :  "  That  the  defendants  have  a  good  and  substantial 
defence  upon  the  merits  in  this  cause,  to  the  whole  or  some  part 
of  said  plaintiffs'  demand  upon  which  this  action  is  brought 
as  he  is  advised  by  said  counsel  and  verily  believes." 

N.  HILL,  JR.,  defendants1  counsel. 
GRAY  &  HATHAWAY,  defendants'  attorney. 
E.  W.  PECKHAM,  plaintiffs'  counsel. 
SPENCER  &  KERNAN,  plaintiffs'  attorney. 

BRONSON,  Chief  Justice.  Denied  the  motion  upon  the 
defect  in  defendants'  affidavit ;  which  stated  that  he  had  a 
good  and  substantial  defence  upon  the  merits  to  the  whole  or 


NEW-YORK  PRACTICE  REPORTS.  162 

Miller  agt.  Miller. 

some  part  of  plaintiffs'  demand  •  it  did  not  come  within  the 
rule. 

Decision — Motion  denied  with  costs,  without  prejudice. 


KEUBEN  MILLER  agt.  STEPHEN  MILLER  and  WM.  MILLER, 
Exrs.,  &c.  of  JACOB  P.  MILLER,  deceased. 

A  motion  by  plaintiff  to  strike  out  a  plea  of  defendant  as  false,  will  be  denied 
with  costs,  where  the  defendant  fully  swears  to  the  truth  of  said  plea. 

April  Term,  1845. 

MOTION  by  plaintiff  to  strike  out  the  plea  of  payment  or 
third  plea  by  the  defendants  pleaded ;  on  the  ground  that  the 
same  was  false. 

Plaintiff  declared  in  assumpsit  for  work,  labor  and  services, 
goods,  wares  and  merchandise,  money  lent  and  advanced, 
paid,  laid  out  and  expended,  money  had  and  received,  and 
also  for  board,  washing  and  lodging,  provided  by  plaintiff  for 
the  said  Jacob  P.  Miller  in  his  lifetime,  and  upon  an  account 
stated.     The  defendants  pleaded,  First,  that  the  said  -Jacob  P. 
Miller,  in  his  lifetime,  did  not  undertake  and  promise  in 
manner  and  form  as  the  plaintiff  in  his  declaration  com- 
plained :  /Second,  the  statute  of  limitations,  and  Third,  that 
after  the  making  of  the  said  several  promises  and  undertakings 
in  the  said  declaration  mentioned,  to  wit :  on  the  2d  day  of 
February,  1843,  during  the  lifetime  of  the  said  Jacob  P.  Mil- 
ler, deceased,  he,  the  said  Jacob  P.  Miller,  fully  paid 
and  satisfied  the  *said  plaintiff  all  and  singular  the     [*163] 
said  several  sums  of  money  in  the  said  declaration 
specified  and  set  forth.     The  plaintiff  alleged  the  third  plea 
to  be  wholly  and  entirely  false,  and  that  no  part  of  the  claims 
of  plaintiff  for  which  the  suit  was  brought  was  ever  paid  by 
said  Jacob  P.  Miller  in  his  lifetime,  or  by  any  other  person, 
and  that  he  had  a  good  cause  of  action,  &c.     The  defendants 


163  XEW-YORE.  PRACTICE  REPORTS. 

The  People  agt.  The  Board  of  Supervisors  of  the  County  of  Dutchess. 

stated  in  the  affidavit,  in  opposition  to  the  motion,  that  the 
plea  of  payment  interposed  by  defendants  to  plaintiff's  decla- 
ration, was  true  in  substance  and  matter  of  fact ;  that  it  was 
pleaded  in  good  faith,  and  that  the. whole  of  plaintiff's  de- 
mand in  said  cause  had  been  fully  paid  and  satisfied  by  Jacob 
P.  Miller  in  his  life  time,  which  defendants  expected  to  be 
able  to  show  on  the  trial,  and  swore  to  merits  generally. 

J.  KOON,  plaintiffs'  counsel  and  attorney. 

M.  T.  REYNOLDS,  defendants'  counsel  and  attorney. 

.  BRONSON,  Chief  Justice.     Denied  the  motion  on  the  ground 
that  the  defendants  had  fully  sworn  to  the  truth  of  the  plea. 


ON  the  10th  April,  1845,  being  the  second  Tuesday  of  April, 
the  election  for  charter  officers  of  the  city  of  Albany  was  held ; 
and  it  having  been  suggested  by  counsel,  whether  the  court 
could  be  legally  held  on  that  day,  under  the  act  of  1842  ;  the 
chief  justice  examined  the  act  referred  to,  and  was  of  opinion 
that  it  applied  to  general  and  special  elections  for  state  officers 
only,  that  a  charter  election  did  not  come  within  the  spirit  of 
the  law. 


THE  PEOPLE  ex  rel.  JOHN  COLLER  agt.  THE  BOARD  OF  SU- 
PERVISORS OF  THE  COUNTY  OF  DUTCHESS. 

An  alternative  mandamus  allowed  to  bring  up  the  question  of  the  legality  of  the 
charges  of  a  justice  of  die  peace  against  a  county,  for  services  performed  under 
the  law,  entitled  "of  beggars  and  vagrants."  (Revised  Statutes,  part  10,  title 
2,  chap.  20.) 

April  Term,  1845. 

MOTION  by  relator  for  a  mandamus. 

This  was  a  motion  by  John  Coller,  a  justice  of  the  peace  of 


NEW-YORK  PRACTICE  REPORTS.  163 

Pike  agt.  Power. 

Poughkeepsie,  Dutchess  county,  for  a  mandamus  to  require 
the  board  of  supervisors  of  the  county  of  Dutchess,  to  audit 
and  allow  his  account  presented  to  said  board  at  their  last  an- 
nual meeting-;  for  services  performed  by  said  justice,  for  the 
year  preceding  the  meeting  of  said  board,  under  and 
in  pursuance  of  part  first,  title  ^second,  chapter  twen-     [*164] 
tieth  of  the  Revised  Statutes,  entitled,  "  Of  beggars 
and  vagrants."     Said  board  having  refused  to  audit  and  allow 
such  account.     The  following  is  taken  from  said  account,  to 
show  the  items  charged  in  one  case : 

"  Warrant  to  arrest  "Wm.  B.  Dennis,  vagrant,  .  $0  25 
Commit,  before  Ex.,  19,  order,  19—9  Sub.  54,  "  92 
6  Wit.  sworn,  36  Commit,  after  Ex.,  25,  .  "  61 
Record  of  conviction  75,  examination,  ? ,:  RO^  1  75." 

ROBERT  BARNARD,  relator's  counsel  and  attorney. 

'  BRONSON,  Chief  Justice.     Allowed  an  -alternative  manda- 
mus, to  give  an  opportunity  to  bring  up  the  question. 
Rule  accordingly. 


SOLOMON  M.  PIKE  agt.  JOHN  H.  POWER. 

Where  a  motion  is  denied  and  no  leave  given  to  renew,  the  motion  cannot  be 
made  again  without  first  obtaining  such  leave. 

April  Term,  1845. 

MOTION  by  plaintiff  to  set  aside  default,  &c.,  entered  against 
him  by  defendant  for  irregularity. 

A  preliminary  objection  was  taken  by  defendant  to  this 
motion  on  the  following  ground,  to  wit :  "  That  a  motion 
was  made  at  the  last  December  special  term  in  this  cause  of 
the  same  purport  and  of  a  like  nature  as  this  motion,  and  de- 
nied with  costs,  without  prejudice,  and  the  costs  on  denying 
said  motion,  were  not  then  paid.  At  the  February  special 
term,  a  similar  motion  was  made,  and  none  of  the  facts  on 


164:  NEW-YORK  PRACTICE  REPORTS. 

Robinson  agt.  Merritt. 

which  said  motion  was  founded  were  denied  by  defendant ; 
the  last  motion  was  denied  with  costs,  and  was  heard  on  the 
merits,  and  the  costs  on  such  denial  had  not  then  been  paid." 

J.  H.  STEWART,  plaintiffs  attorney. 
J.  H.  POWER,  defendant's  attorney. 

BRONSON,  Chief  Justice.  Denied  the  motion  with  costs,  on 
the  ground  that  no  leave  was  granted  to  renew  the  motion. 
(See  5  Hill,  493.) 


[*165]    *  JOSEPH  KOBINSON  agt.  EDWARD  MERRITT. 

A  defendant  must  state  in  his  affidavit  of  merits,  on  motion  to  change  the 
venue,  that  he  has  disclosed  to  his  counsel  what  he  expects  to  prove  by  his  vrii- 
nesses. 

June  Term,  1845. 

MOTION  by  defendant  to  have  the  venue  declared  by  the 
court  to  be  laid  in  the  county  of  Westchester,  or  in  case  it 
should  be  considered  already  laid  in  the  city  and  county  of 
New  York,  then,  that  it  be  changed  to  the  county  of  "West- 
Chester. 

This  was  an  action  of  slander,  the  declaration  in  the  margin 
laid  the  venue  in  the  city  and  county  of  New- York,  and 
throughout  the  body  of  the  declaration,  the  venue  was  re- 
ferred to  as  follows  :  "  to  wit,  at  the  town  of  New-Rochette,  in 
the  said  county  of  Westchester.1'1  Defendant's  counsel  moved 
that  the  court  decide  where  the  venue  was  laid  by  the  declara- 
tion. The  judge  replied,  that  the  counsel  must  decide  where 
the  venue  was,  and  whether  he  wished  to  change  it  or  not. 
The  counsel  then  moved  that  the  venue  be  changed  from  the 
city  and  county  of  New-York  to  the  county  of  Westchester. 
An  objection  was  taken  to  defendant's  affidavit  of  merits ; 
that  part  of  the  affidavit  objected  to,  read  as  follows  :  "  That 
this  deponent  has  a  large  number  of  witnesses  residing  in  the 


NEW-YORK  PRACTICE  REPORTS.  165 

Popham  agt.  Baker. 

said  county,  whose  testimony  will  be  material  to  him  on  the 
trial  of  this  cause,  who  will  speak  to  the  character  of  the  plain- 
tiff, and  without  the  testimony  of  each  and  every  of  whom 
this  deponent  could  not  safely  go  to  trial  in  this  cause,  as  he 
is  advised  by  his  counsel  and  verily  believes."  There  was  no 
statement  in  the  affidavit  that  defendant  had  disclosed  to  his 
counsel  what  he  expected  to  prove  by  his  witnesses. 

GrEO.  CASE,  defendants  counsel  and  attorney. 
J.  "W.  TOMPKINS,  plaintiff's  counsel. 
J.  W.  MILLS,  plaintiffs  attorney. 

*JEWETT,  Justice.     Denied  the  motion,  on   the     [*166] 
ground  that  the  affidavit  did  not  conform  to  the  rule, 
in  not  stating  that  defendant  had  disclosed  to  his  counsel  what 
he  expected  to  prove  by  his  witnesses. 

Decision. — Motion  denied  with  costs. 


WILLIAM    T.    POPHAM,    Impleaded,    &c.,   ads.  ELIPHALET 
BAKER  and  others. 

An  affidavit  of  merits  must  be  served  for  the  purpose  of  a  motion,  otherwise  defend- 
ant cannot  be  let  in  to  defend  on  terms,  where  an  inquest  has  been  taken 
against  him,  and  where  he  moves  to  set  it  aside  for  irregularity. 

June  Term,  1845. 

MOTION  by  defendant  to  set  aside  inquest  for  irregularity. 

This  was  an  action  of  assumpsit ;  the  defendant  pleaded  the 
general  issue  accompanied  with  the  usual  affidavit  of  merits 
under  the  98th  rule.  At  the  last  May  circuit  in  New- York, 
plaintiff  took  an  inquest  against  the  defendant,  for  $710.94. 
Defendant  did  not  file  any  affidavit  of  merits,  supposing  the 
one  served  with  the  plea  was  sufficient  to  prevent  an  inquest. 
Defendant  moved  on  papers  having  no  affidavit  of  merits  for 
the  motion,  supposing  the  affidavit  which  accompanied  the 
plea  was  sufficient  for  the  purpose  of  the  motion  also. 


NEW-YORK  PRACTICE  REPORTS. 
Watson  agt.  Morton. 

D.  EGAN,  defendants1  counsel. 
G.  CLARKE,  defendants'  attorney. 
BELL  &  COE,  plaintiff's  attorneys. 

JEWETT,  Justice.     Denied  the  motion,  on  the  ground  that 
there  was  no  affidavit  of  merits  served  for  this  motion. 

Decision. — Motion  denied  with  costs. 


WILLIAM:  WATSON  agt.  PETER  MORTON  et  al 

Under  the  rules,  no  notice  of  signing  and  filing  a  report  of  referees  is  necessary 
to  be  given  to  the  opposite  party  or  his  attorney. 

June  Term,  1845. 

MOTION  by  defendants  to  set  aside  judgment  on  report  of 
referees  and  for  leave  to  serve  papers  for  motion  to  set  aside 
said  report. 

This  cause  was  referred  to  referees,  and  argued  on  the  21st 
of  April  last.  On  the  10th  May  last  the  report  of  referees  was 
signed,  and  the  defendants'  papers  on  that  day  together  w'ith 
the  referees'  report  handed  over  to  plaintiff  by  one  of  the  re- 
ferees, with  a  request  that  plaintiff  would  deliver  defendants' 
papers  to  their  attorney,  E.  Terry,  Esq.,  which  he  promised  to 
do.  On  the  15th  May,  Terry  received  a  note  as  follows — 
"  W.  "Watson  has  called  three  times  to  see  Mr.  Terry, 
[*167]  referees  in  Watson  agt.  *Morton,  report  $223.56  due 
plaintiff,  (signed)  W.  Watson."  On  the  10th  May, 
rule  for  judgment  was  entered  for  plaintiff,  and  on  15th  May, 
judgment  was  filed  and  docketed.  Defendants  moved  on  an 
affidavit  of  merits,  &c.,  on  the  ground  that  no  notice  had  ever 
been  given  them  or  their  attorney,  of  the  signing  and  filing 
said  report,  before  judgment  was  entered. 

E.  TERRY,  defendants1  attorney. 
W.  WATSON,  plaintiff's  attorney. 


NEW-YORK  PRACTICE  REPORTS. 
Henry  agt.  Henry. 

JEWETT,  Justice.  Denied  the  motion,  on  the  ground  that 
ander  the  rules  no  notice  to  the  opposite  party  or  his  attorne}r 
was  necessary,  of  signing  and  filing  a  report  of  referees.  De- 
fendants' attorney  mistook  the  practice. 

Decision. — Motion  denied  with  costs. 


WILLIAM  HENRY  agt.  JAMES  HENRY. 

On  service  of  a  copy  of  a  writ  of  sci.  fa.,  the  copy  must  le  certified  by  the  officer 
serving  the  same,  the  word  "  copy"  merely,  is  not  sufficient;  it  should  have  the 
name  of  the  sheriff  or  deputy,  or  other  officer  serving  the  same,  subscribed 
thereto. 

The  teste  of  a  writ,  in  the  name  of  Greene  C.  Bronson,  chief  justice,  of  the  first 
Monday  of  January,  1845,  is  amendable. 

June  Term,  1845. 

MOTION  by  defendant  to  set  aside  the  writ  of  sci.  fa.,  and 
subsequent  proceedings  for  irregularity. 

On  the  5th  April,  1845,  Alexander  "Welton,  a  deputy 
sheriff  of  Madison  county,  served  on  the  defendant  a  writ  of 
scire  facias,  by  delivering  to  said  defendant  what  purported  to 
be  a  copy  of  said  writ.  Defendant  stated  that  he  was  in  the 
town  of  Sherburne  and  county  of  Chenango,  when  he  received  tlie 
same  from  said  deputy  sheriff.  The  writ  was  tested  in  the  name 
of  Greene  C.  Bronson,  chief  justice,  at  the  Capitol,  in  the  city  of 
Albany,  the  first  Monday  of  January,  A.  D.  1845,  and  return- 
able the  1st  Monday  of  May,  1845.  There  was  no  certificate 
signed  by  said  Welton  to  said  copy  delivered  to  defendant,  the 
word  "  copy"  was  all  that  appeared  upon  it,  and  that  was  in 
the  handwriting  of  one  of  plaintiff's  attorneys.  The  deputy 
sheriff  stated,  that  he  served  the  writ  on  the  defendant,  by  de- 
livering him  a  copy,  with  the  word  "  copy"  inscribed  thereon, 
and  at  the  same  tune  showing  him  the  original.  And  at  the 
time  of  the  service  the  defendant  was  in  the  highway  on  the 
top  of  a  load  of  manure  ;  that  the  county  line  between  Madi- 
ison  and  Chenango  counties  was  in  the  centre  of  said  highway ; 

VOL.  I.  16 


168  NEW-YORK  PRACTICE  REPORTS. 

Ived  agt.  Vandewater. 

the  defendant  was  precisely  in  the  centre  of  the  high- 
[*168]  way  as  *near  as  he  could  judge,  and  he  fully  believed 

that  one-half  at  least  of  the  defendant  was  in  Madison 
county. 

DODGE  &  BIRDSEYE,  defendant's  counsel. 
J.  P.  WHITTEMORE.  defendant's  attorney. 
N.  HILL,  JR.,  plaintiff's  counsel. 
SHERWOOD  &  NEY,  plaintiff's  attorneys. 

JEWETT,  Justice.  The  teste  in  the  name  of  the  present 
chief  justice  is  amenable ;  he  thought  the  weight  of  evidence, 
as  gathered  from  the  papers,  showed  that  defendant  was  in 
the  county  of  Chenango ;  without,  however,  deciding  that 
point,  he  was  clearly  of  opinion  that  the  copy  of  the  writ  de- 
livered to  the  defendant  at  the  time  of  service,  was  not  such  a 
copy  as  was  contemplated  by  the  statute.  Service  is  made  by 
delivering  a  copy  thereof,  certified  by  the  officer  serving  the 
same  to  the  party  required  to  be  summoned,  or  by  leaving 
such  copy,  &c.  (2  R.  £,  579,  §  16.)  The  copy  served  in  this 
case  was  not  certified  by  either  the  sheriff  or  his  deputy  ;  the 
word  "  copy"  appeared  upon  it,  but  that  could  not  be  considered 
a  certified  copy  by  the  ofiicer  within  the  meaning  of  the  statute. 

Motion  granted  with  costs. 


EDWIN  E.  IVES  et  al.  agt.  EGBERT  J.  VANDEWATER  et  al. 

A  motion  for  reference  will  be  denied,  where  it  clearly  appears  that  substantial 
questions  of  law  will  arise  on  the  trial,  although  plaintifls  show  it  will  require 
the  examination  of  a  long  account  on  their  part. 

June  Term,  1845. 

MOTION  by  plaintifis  to  refer  this  cause. 

Plaintifis  stated  that  this  was  an  action  of  assumpsit,  and 
the  trial  would  require  the  examination  of  a  long  account  on 
the  part  of  the  plaintiffs.  The  defendants  stated  that  the  ac- 
tion was  founded  on  certain  articles  of  agreement,  entered  into 


NEW-YORK  PRACTICE  REPORTS.  168 

Dresser  agt.  Brooks. 

in  writing  by  an  association  of  forwarders  on  the  Erie  canal, 
called  "  The  Canal  Association,"  and  the  whole  ground  of  the 
defence  interposed  was,  the  illegality  of  the  said  association, 
and  specified. 

1.  That  the  said  association  and  the  articles  thereof,  were 
contrary  to  the  provisions  of  the  2  R.  S.  691,  §  8. 

2.  That  the  same  was  a  conspiracy  for  purposes  injurious  to 
trade  and  commerce,  and  was  a  misdemeanor  by  statute. 

3.  That  no  action  can  be  sustained  upon  said  articles  of  as- 
sociation, they  being  illegal  and  void. 

They  also  stated  that  two  causes  involving  the 
same  questions  were  *tried  at  the  last  circuit  court     [*169] 
in  and  for  the  county  of  Albany,  and  the  plaintiffs 
in  each  case  were  nonsuited  upon  said  grounds. 

J.  NEWLAND,  plaintiffs'  counsel. 

DEAN  &  NEWLAND,  plaintiffs'  attorneys. 

H.  HARRIS,  defendants'  counsel. 

HARRIS  &  SHEPARD,  defendants'  attorneys. 

JEWETT,  Justice.  Was  clearly  of  opinion  this  was  not  a 
proper  case  for  reference ;  that  it  ought  to  be  tried  at  the  cir- 
cuit. Defendants'  papers  show,  and  it  is  obvious  from  the 
nature  of  the  defence  that  substantial  questions  of  law  will 
arise  on  the  trial.  The  motion  must  be  denied. 

Decision. — Motion  denied  with  costs. 


HORACE  DRESSER  agt.  BENJAMIN  F.  BROOKS. 

Plaintiff  may  have  leave  (on  terms)  to  substitute  a  special  plea  for  a  notice  sub- 
joined to  a  replication,  where  he  wishes  to  introduce  testimony  to  show  fraud 
in  the  discharge  and  certificate  of  the  defendant,  which  has  been  pleaded  spe- 
cially to  plaintiff 's  declaration.  It  seems  that  testimony  going  to  show  fraud, 
etc.,  in  a  defendant's  discharge  and  certificate  in  bankruptcy  cannot  be  given 
under  a  notice :  it  must  be  pleaded  specially. 


169  NEW-YORK  PRACTICE  REPORTS. 

Stinnard  agt  The  New  York  Fire  Insurance  Company. 

June  Term,  1845. 

MOTION  by  plaintiff  for  leave  to  amend  his  pleadings. 

Issue  was  joined  in  this  cause,  May  27,  1844 :  the  action, 
debt  on  judgment.  Defendant  pleaded  nul  tiel  record,  and 
two  special  pleas  of  discharge  and  certificate  under  the  bank- 
rupt law.  Eeplications  to  said  pleas  were  put  in,  to  which 
was  subjoined  a  notice,  setting  forth  the  matters  to  be  given  in 
evidence  on  the  trial  of  the  cause  to  impeach  the  discharge  and 
certificate.  The  plaintiff  moved  to  interpose  a  special  plea  of 
the  matters  alleging  fraud,  instead  of  the  notice  subjoined  to 
the  replication,  on  the  ground  that  it  was  doubtful  whether  the 
testimony  intended  to  be  offered  to  sustain  the  allegation  of 
fraud,  &c.,  could  be  introduced  under  the  notice. 

H.  DRESSER,  counsel  and  attorney  in  propria  persona. 

~W.  McCALL,  defendant's  counsel 

MATTISON  &  DOOLITTLE,  defendants  attorneys. 

JEWETT,  Justice.    Granted  the  motion,  on  payment  of  costs 
of  opposing  motion. 
Eule  accordingly. 


AUGUSTUS  STINNARD,  JR.,  agt.  THE  NEW  YORK  FIRE  IN- 
SURANCE COMPANY. 

A  verbal  arrangement  between  the  attorneys  that  the  cause  shall  go  over  the 
circuit,  held  good,  although  the  defendant  disavows  it,  and  attends  the  court 
prepared  for  triaL  A  motion  for  judgment  as  in  case  of  nonsuit  under  such 
circumstances,  will  be  denied  with  costs. 

June  Term,  1845. 

MOTION  by  defendants  for  judgment  as  in  case  of  nonsuit. 

Issue  was  joined  in  this  cause  on  the  31st  day  of 

[*170]     *  August,  1844;   was  noticed  for  trial  on  the  7th 

April,  1845,  for  the  April  circuit  in  Westchester 

county,  which  commenced  April  21,  1845.     The  cause  was 

not  brought  to  trial ;  and  younger  issues  were  tried  at  said 


NEW-YORK  PRACTICE  REPORTS.  1YO 

Stinnard  agt.  The  New  York  Fire  Insurance  Company. 

circuit.  "William  Nelson,  Esq.,  of  Peekskill,  was  substituted 
attorney  for  the  defendants  on  the  18th  April,  1845,  in  the 
place  of  S.  F.  Cowdrey,  Esq.,  of  New- York,  the  former  at- 
torney of  defendants  ;  and  notice  of  such  substitution  was,  on 
the  29th  April,  1845,  served  on  Minot  Mitchell,  Esq.,  plain- 
tiff's attorney.  On  the  15th  of  April,  Minot  Mitchell,  plain- 
tiff's attorney,  wrote  to  his  son  William  M.  Mitchell,  Esq.,  of 
the  city  of  New-York,  that  he  should  not  be  able  to  prepare 
and  try  the  cause  at  the  April  circuit,  on  account  of  his  ab- 
sence from  the  county ;  and  requested  said  William  M. 
Mitchell  to  call  on  S.  F.  Cowdrey,  Esq.,  defendants'  attorney, 
and  get  his  counsel  to  let  the  cause  go  over  to  the  fall  circuit, 
which  would  be  held  at  White  Plains,  and  would  be  much 
more  convenient  for  parties  and  witnesses  than  the  April  cir- 
cuit held  at  Bedford.  William  M.  Mitchell  swore  that  on  or 
about  the  16th  April  he  called  on  S.  F.  Cowdrey,  Esq.,  de- 
fendants' attorney,  and  delivered  to  him  the  letter  of  said  Mi- 
not Mitchell.  Cowdrey  replied  that  it  would  be  more  con- 
venient for  the  defendants  to  have  the  cause  tried  at  the  fall 
circuit  held  at  White  Plains,  and  he  would  consent  that  it 
should  go  off  for  the  April  circuit  according  to  the  request  of 
said  Minot  Mitchell ;  that  Cowdrey  further  said  no  further 
notice  nor  any  stipulation  would  be  necessary,  but  that  the 
case  should  go  off  without  costs  and  without  prejudice  to 
either  party.  This  arrangement  William  M.  Mitchell,  Esq., 
immediately  communicated  to  Minot  Mitchell,  Esq.,  plaintiff's 
attorney ;  and  which  was  not  substantially  denied  in  the  affi- 
davit of  S.  F.  Cowdrey,  Esq.,  on  the  motion.  Between  the 
18th  and  21st  of  April,  0.  H.  Jones,  president  of  the  defend- 
ants, and  who  had  the  management  of  the  cause,  in  an  inter- 
view with  S.  F.  Cowdrey,  Esq.,  stated  to  him,  after  learning 
of  the  arrangement,  that  he  preferred  to  have  the  cause  tried 
at  the  April  circuit :  to  which  Cowdrey  replied  he  had  better 
see  William  M.  Mitchell,  Esq.,  and  inform  him  as  to  that  fact 
immediately.  On  the  same  day  Jones  called  on  said  W.  M. 
Mitchell,  and  told  him  he  would  not  consent  to  put  the  cause  off 
until  the  fall  circuit :  to  which  Mitchell  replied,  that  Mr.  Cow- 


NEW-YORK  PRACTICE  REPORTS. 
Post  agt.  Haight. 

drey  had  already  consented,  and  it  was  then  out  of  the  ques- 
tion for  plaintiff  to  prepare  for  trial  at  the  April  circuit,  and 
the  cause  would  not  be  tried.  Plaintiff  stated-  he  should  get 
ready  with  his  witnesses  and  go  to  the  circuit  at  all  events, 
and  the  plaintiff  would  have  to  pay  the  expenses  of  it ;  and 
did  accordingly  attend  the  circuit,  prepared  to  try  the  said 
cause. 

[*171]   *THOS.  NELSON,  defendant's  counsel. 
WM.  NELSON,  defendants  attorney. 
ALBERT  LOCKWOOD,  plaintiff's  counsel. 
M.  MITCHELL,  plaintiff's  attorney. 

JEWETT,  Justice.  This  motion  'ought  not  to  have  been 
made ;  the  defendant  Jones  instead  of  complying  with  the 
agreement  which  had  been  made  by  his  attorney  and  young 
Mitchell  who  was  authorized  to  act  by  plaintiff 's  attorney,  at- 
tended the  circuit  in  violation  of  it,  and  as  appears  in  bad  faith. 

Decision. — Motion  denied  with  costs. 


ISRAEL  POST,  JR.  agt  OBADIAH  S.  HAIGHT. 
ISRAEL  POST,  JR.  agt  OBADIAH  S.  HAIGHT. 

The  court  on  motion  will  not  look  beyond  the  record  and  papers  to  ascertain  who 
the  attorney  in  fact  is  to  the  suit ;  it  is  sufficient  if  any  attorney  of  the  court 
appears  upon  the  record  and  papers.  An  attorney  who  lends  his  name  to  his 
clerk  to  defend  a  suit,  and  refuses  in  the  progress  of  the  cause  to  have  anything 
to  do  with  it,  never  having  been  retained,  but  refers  all  matters  in  relation  to 
it  to  his  clerk,  who  has  used  his  name  as  attorney  in  the  suit  under  the  stat- 
ute, is  held  to  be  the  proper  attorney  to  make  a  motion  in  the  cause. 

June  Term,  1845. 

MOTION  by  defendant  to  consolidate  the  above  two  causes 
into  one. 

Defendant's  affidavit  stated  that  the  first-mentioned  suit  was 
commenced  by  declaration  on  the  14th  of  March,  1845  ;  the 
second  suit  was  commenced  on  the  24th  of  March,  1845,  by 


NEW-YORK  PRACTICE  REPORTS.  1*71 

Mather  agt.  "Wardell. 

declaration  ;  both  actions  were  in  assumpsit  and  might  be  con- 
solidated, there  was  substantially  the  same  defence  in  each. 
The  plaintiff  objected  to  the  motion  on  the  ground  that  George 
G.  Scott,  Esq.,  the  defendant's  attorney,  who  appeared  upon 
record,  was  not  the  attorney  in  fact,  and  had  no  right  to  make 
this  motion.  Scott  having  merely  allowed  his  name  to  be 
used  under  the  statute  as  defendant's  attorney  by  one  A.  S. 
Haight,  a  clerk  in  his  office  at  the  time  of  the  commencement 
of  the  suit.  Haight  having  since,  (in  May  term  last,)  been  ad- 
mitted an  attorney  of  this  court ;  that  Scott  refused  to  do  any- 
thing about  the  suits  with  plaintiff's  attorney,  saying  he  had 
never  been  retained  and  knew  nothing  about  them ;  that 
Haight  had  the  management  of  them  altogether. 

A.  HILL,  JR.,  defendant's  counsel. 

GEO.  G.  SCOTT,  defendant's  attorney. 

W.  B.  LITCH,  plaintiff's  counsel  and  attorney. 

JEWETT,  Justice.     Said  he  could  not  look  beyond  the  papers, 
and  the  records  in  the  suit,  to  ascertain  who  the  attorney  was 
in  fact ;  it  was  enough  for  him  to  know  that  an  attorney  of  this 
court  appeared  upon  the  records  and  in  the  papers  for 
the  motion  ;  without  inquiring  by  what  *means  or  in     [*172] 
what  manner  he  came  to  be  the  attorney,     The  mo- 
tion must  be  granted. 

Decision. — Motion  granted  with  costs. 


HENRY  H.  MATHER  agt.  CHARLES  WARDELL. 

A  default  taken  at  a  special  term  will  not  be  opened  at  the  same  term,  where  it 
appears  the  opposing  counsel  did  not  attend  the  term  at  all,  until  late  in  the 
session,  and  then  come  in  and  found  a  default  had  been  taken  against  him,  and 
moved  to  open  it  on  the  ground  that  he  and  the  counsel  moving  had  an  under- 
standing not  to  attend  until  about  the  close  of  the  term,  he  must  attend  the 
term  and  watch  his  motions,  otherwise  he  must  give  notice  and  move  at  the 
next  term  to  open  the  defaults. 


. 
172  '    NEW-YORK  PRACTICE  REPORTS. 

Dresser  agt.  Smith. 

June  Term,  1845. 

A  motion  for  judgment  as  in  case  of  nonsuit  in  this  cause 
was  made  and  granted  by  default  on  the  5th  of  June. 

On  the  7th  of  June,  plaintiff's  counsel  moved  to  open  the 
default,  on  the  ground  that  there  was  an  understanding  with 
one  of  defendant's  counsel  with  plaintiff 's  counsel  that  he 
would  not  probably  attend  the  term  until  the  7th.  The  part- 
ner of  defendant's  counsel  with  whom  no  arrangement  was 
made,  attended  the  term  on  the-  5th,  and  took  his  motion  by 
default. 

JEWETT,  Justice.  The  default  cannot  be  opened  at  this 
term ;  if  plaintiff 's  counsel  had  been  in  attendance  upon  the 
court,  it  might  be  proper  to  open  it ;  where  counsel  are  in  at- 
tendance watching  their  motions,  and  by  mistake  a  default  is 
taken  against  them,  it  is  usual  to  open  the  default.  Here  the 
defendant's  counsel  has  made  his  motion  and  gone  home,  and 
his  opponent  does  not  appear  at  court  or  any  other  counsel  for 
him,  until  nearly  the  close  of  the  term.  Notice  must  be  given 
defendant's  attorney  to  open  the  motion  at  the  next  special 
term. 


HORACE  DRESSER  agt.  JEREMIAH  SMITH,  JR. 

A  variation  of  the  month  in  a  copy  of  a  note,  in  declaration  filed  and  served  hi  the 
suit,  the  original  being  March  and  the  copy  May,  held  to  be  an  immaterial  va- 
riation, and  will  be  disregarded  on  the  trial  A  motion  to  amend  is  unneces- 
sary. 

June  Term,  1845. 

MOTION  by  plaintiff  for  leave  to  amend  his  bill  of  particu- 
lars in  this  cause. 

This  was  an  action  of  assumpsit  upon  a  promissory  note  as 
the  plaintiff's  bill  of  particulars  and  only  cause  of  action ;  the 
copy  note  in  the  declaration  filed  and  in  the  one  served  was 


NEW-YORK  PRACTICE  REPORTS. 
Baldwin  agt.  Tillson. 

dated  "  May  5,  1844,"  whereas  the  true  date  in  the  original 
note  was,  "  March  5,  1844."  The  cause  was  twice  on  the  cal- 
endar and  three  times  noticed  for  trial. 

•r  f-?.'  •  e»ril     .•  •••.' 

*H.  DRESSER,  counsel  and  attorney  in  propria  persona.  [*173] 
WM.  NORTON",  defendant's  counsel  and  attorney. 

JEWETT,  Justice.  This  motion  seems  entirely  unnecessary, 
the  variance  is  immaterial,  and  would  be  disregarded  on  the 
trial.  The  counsel  can  withdraw  his  motion  on  payment  of 
$7  costs  of  opposing  if  he  prefers  to  do  so. 

The  motion  was  withdrawn  on  the  terms  mentioned. 


TRUMAN  BALDWIN  agt.  ALVIN  H.  TILLSON. 

The  rule  that.^aj-ty  ,cannot  stipulate  a  sepond  time,  does  not  apply  where  the 
first  stipulation  has  been  performed. 

June  Term, 1845. 

MOTION  by  defendant  for  judgment  as  in  case  of  nonsuit. 

Issue  was  joined  in  this  cause,  October  28,  1842.  The 
cause  was  tried  at  the  circuit  in  and  for  Otsego  county,  in 
September,  1843,  the  plaintiff  having  previously  stipulated  to 
try  at  that  circuit.  A  case  was  made  for  a  new  trial,  which 
was  argued  at  July  term,  1844,  and  decided  by  this  court  at 
a  subsequent  term  (not  stated  by  the  papers),  motion  for  a 
new  trial  granted.  A  circuit  was  held  in  Otsego  county  in 
April  last,  (being  the  first  after  the  decision,)  at  which  plain- 
tiff did  not  notice'  the  cause  for  trial,  but  served  defendant's 
attorney  with  a  stipulation  to  try  at  the  next  circuit.  It  was 
insisted  by  defendant's  counsel,  that  the  plaintiff  could  not 
stipulate  a  second  time  under  the  rule  as  a  matter  of  course. 

S.  S.  BOWNE,  defendant's  counsel 
L.  S.  CHATFIELD,  defendant's  attorney. 


173  NEW- YORK  PRACTICE  REPORTS. 

Johnson  agt.  Anthony. 

N".  HILL,  JR.,  plaintiff's  counsel. 
H.  BENNETT,  plaintiff's  attorney. 

JEWETT,  Justice.  The  rule  that  a  party  cannot  stipulate  a 
second  time  as  a  matter  of  course,  does  not  apply  to  a  case  of 
this  kind  ;  here  the  first  stipulation  had  been  fully  performed, 
the  cause  was  tried  under  it.  The  plaintiff,  therefore,  had  a 
right  to  stipulate  again. 

Decision. — Motion  denied  with  costs. 


CHESTER  JOHNSON  agt.  DANIEL  ANTHONY. 

June  Term,  1845. 

MOTION  by  plaintiff  to  set  aside  the  default  of  plaintiff  en- 
tered by  defendant  for  not  replying. 

The  plaintiff  obtained  an  order  from  the  circuit  judge  to 
extend  his  time  to  reply  to  defendant's  special  pleas,  until  the 
2d  May,  1845.  On  the  30th  April,  plaintiff's  attorney 
[*174]  (who  resided  *at  Union  village.  Washington  county) 
sent  his  affidavits  and  papers  to  his  agent  at  Albany, 
to  have  plaintiff 's  default  entered  for  not  replying,  on  the  2d 
May,  which  was  done  accordingly.  On  the  1st  May,  plaintiff's 
attorney  (who  resided  at  Troy)  served  on  defendant's  attorney 
an  order  of  the  circuit  judge,  dated  May  1st,  enlarging  the 
time  to  reply  twenty  days,  by  putting  the  same  in  the  post- 
office,  directed  to  defendant's  attorney,  and  paying  postage 
thereon,  which  was  received  by  defendant's  attorney  in  the 
afternoon  of  the  2d  May,  and  appeared  postmarked  at  Troy 
on  the  2d  May  ;  that  from  the  postmark  it  would  appear  that 
the  letter  was  put  in  the  post-office  on  the  2d  of  May,  or  that 
it  was  put  in  on  the  1st  of  May  after  the  mail  had  closed  for 
the  place  of  destination  of  the  letter.  Defendant's  counsel  in- 
sisted that  the  service  was  irregular,  and  cited  Howard's  Spe- 
cial Term  Reports,  No.  3,  p.  87,  (Maker  agt.  Comstock  et  al.) 


NEW-YORK  PRACTICE  REPORTS.  174 

Hull  agt.  Halsted. 

Plaintiff 's  counsel  insisted  that  the  service  was  regular,  that  it 
was  sworn  to  positively  that  the  letter  was  put  into  the  post- 
office  on  the  first,  the  postage  paid,  and  was  inclosed  in  an 
envelope,  and  there  was  nothing  appeared  to  show  when  the 
mail  closed. 

J.  A.  MILLARD,  plaintiff's  counsel  and  attorney. 
N.  HILL,  JR.,  defendant's  counsel. 
C.  F.  INGALLS,  defendant's  attorney. 

JEWETT,  Justice.  This  case  does  not  come  within  the  deci- 
sion cited  by  defendant's  counsel.  In  that  case  it  was  shown 
at  what  hour  the  mail  closed,  and  that  the  service  was  made 
after  that  hour,  &c.  The  plaintiff  seems  to  be  regular,  and  the 
motion  must  be  granted. 

Decision. — Motion  granted  with  $10  costs. 


ABEL  A.  HULL  agt.  GEORGE  P.  HALSTED. 

Wliere  both  parties  recover  a  portion  of  the  property  in  an  action  of  replevin, 
and  the  value  of  each  portion  is  assessed,  each  party  is  entitled  to  costs,  pro- 
vided the  amounts  are  sufficient  to  carry  costs. 

June  Term,  1845. 

MOTION  by  plaintiff  that  the  defendant  pay  plaintiff's  costs 
to  be  taxed  in  this  cause,  &c. 

This  was  an  action  of  replevin,  brought  to  recover  a  quan- 
tity of  brick  and  other  property  which  was  distrained  by  de- 
fendant as  a  constable  for  rent.  The  jury  found  for  the  plain- 
tiff six  cents  damages,  and  assessed  the  value  of  the  property 
at  $1,000.  They  also  found  for  the  defendant  and  assessed 
the  value  of  the  property  at  $352,  besides  an  amount  of  rent 
found  to  be  due  from  plaintiff  to  defendant. 


174  NEW-YORK  PRACTICE  REPORTS. 

Seacord  agt  Burling. 

M.  T.  KEYNOLDS,  plaintiff'' s  counsel. 
M.  MITCHELL,  plaintiff's  attorney. 
GEO.  P.  NELSON,  defendant's  counsel. 
WM.  NELSON,  defendant's  attorney. 

[*175]        JEWETT,  Justice.    I  shall  decide  that  both  parties 

have  costs,  without  any  costs  of  this  motion. 
Kule  accordingly. 


BENJAMIN  SEACORD  agt.  JAMES  BURLING. 

An  objection  to  a  juror  must  be  made  at  the  time  he  is  called  upon  the  panel 
If  a  trial  is  had  and  verdict  rendered,  without  any  objection  to  any  of  the  jury, 
the  verdict  will  not  be  set  aside,  because  one  of  the  jurors  on  the  panel  had  on 
a  previous  day  of  the  same  circuit  been  tried  on  a  challenge  and  found  to  be 
over  sixty  years  of  age. 

June  Term,  1845. 

MOTION  by  defendant  to  set  aside  the  verdict  rendered  in 
this  cause,  and  judgment  entered  thereupon. 

This  was  a  motion  by  defendant  to  set  aside  the  verdict, 
&c.,  on  the  ground  that  an  improper  juror  sat  upon  the  panel 
who  tried  the  cause.  The  cause  was  tried  at  the  Westchester 
circuit,  in  April,  1845  ;  one  Nathaniel  Hyatt  was  drawn  by 
the  clerk  as  a  juror  of  the  regular  panel,  without  any  objection 
being  made  to  him.  The  jury  brought  in  a  verdict  for  plain- 
tiff of  $5,000.  The  affidavits  alleged  Hyatt  used  an  improper 
influence  with  the  jury,  and  that  he  was  noted  for  his  cunning 
and  artful  management  in  such  cases ;  the  defendant  pro- 
duced a  certificate  of  the  county  clerk  of  Westchester  county, 
showing  that  Hyatt  had  been  challenged  a  few  days  previous, 
at  the  circuit,  as  a  juror,  and  upon  his  trial  he  admitted 
he  was  sixty-four  years  of  age ;  on  that  ground  he  was 
rejected  as  a  juror ;  but  the  clerk  not  having  received  any 
directions  from  the  court  to  destroy  the  ballot,  kept  the  name 
in  the  jury  box,  arid  ne*  was  drawn  upon  this  cause. 


NEW-YORK  PRACTICE  REPORTS.  175 

Maher  agt.  Comstock. 

J.  EDWARDS,  defendants  counsel. 

GEORGE  CASE,  defendants  attorney. 

J.  W.  TOMPKINS,  plaintiff 's  counsel  and  attorney. 

JEWETT,  Justice.  The  objection  to  the  juror's  age,  if  taken 
in  time  would  have  been  a  good  one,  but  after  he  was  drawn 
upon  the  panel — heard  the  cause  tried,  and  had  with  the  rest 
rendered  a  verdict,  it  is  too  late  to  interpose  the  objection. 
The  motion  must  be  denied 

Decision. — Motion  denied,  with  costs. 


JAMES  MAHER  agt.  ALLEN  COMSTOCK. 
JOHN  C.  VAN  SCHOONHOVEN  agt.  THE  SAME. 

Papers  on  a  motion  for  an  allowance  of  a  writ  of  error  coram  nobis,  to  reverse  a 
judgment,  should  not  regularly  be  entitled  in  any  suit. 

June  Term,  1845. 

MOTION  on  the  part  of  the  defendant  in  each  of 
the  above  causes  for  *an  allowance  of  a  writ  of  error,     [*176] 
coram  nobis  to  reverse  the  judgment  in  each  cause  for 
errqr  in  fact. 

The  defendant  being  an  infant  at  the  time  of  the  rendition 
of  the  judgment  as  is  alleged ;  notice  of  the  motions  entitled 
in  the  suits  has  been  given  to  the  attorneys  for  the  plaintiff  in 
each  suit,  and  a  copy  of  the  affidavits  and  papers  on  which 
the  same  is  founded  duly  served  on  the  plaintiff's  attorneys. 
The  following  are  the  affidavits,  &c. :  1st,  An  affidavit  of 
Laura  D.  Baker,  not  entitled  in  any  suit,  matter  or  proceeding, 
showing  that  Allen  Comstock  was  twenty-one  years  of  age 
on  the  26th  day  of  April,  1845.  2d,  A  petition  of  Comstock. 
dated  26th  Feb.,  1845,  showing  the  recovery  of  the  judg- 
ment— his  infancy  at  the  time — that  no  guardian  had  been 
appointed  for  him — that  he  was  about  to  prosecute  a  writ  of 
error,  &c.,  and  praying  the  appointment  of  zprochein  ami  for 


IT 6  NEW-YORK  PRACTICE  REPORTS. 

Maher  agt.  Comstock. 

him.  3d,  The  consent  of  the  person  proposed  as  such,  and 
his  affidavit  showing  his  qualifications.  (At  the  March  spe- 
cial term,  on  these  papers,  this  court  ordered  the  appointment 
of  a  prochein  ami  ex  parte.)  4th,  An  affidavit  not  entitled, 
made  bj  Allen  Comstock,  29th  March,  1845,  showing  that  he 
was  born  26th  April,  1824.  5th,  An  affidavit  of  Mary 
Dewey  not  entitled,  made  the  27th  March,  1845,  also  showing 
that  Allen  Comstock  was  born  the  26th  of  April,  1824.  6th, 
An  affidavit  of  E.  Clark,  entitled  "  Supreme  Court,"  "  Allen 
Comstock  ads.  James  Malier"  "  Allen  Comstock  ads.  John  0. 
Van  Schoonhoven"  proving  that  a  judgment  in  each  suit,  in  an 
action  of  assumpsit  had  been  recovered  against  the  defendant, 
and  that  an  execution  thereon  had  been  issued  and  was  then 
in  the  hands  of  the  sheriff,  &c.  7th,  An  affidavit  entitled  as 
the  last  mentioned,  made  by  said  Clark,  on  the  3d  of  April 
last,  showing  an  excuse  why  the  motion  was  not  sooner  made, 
&c.  8th,  Notice  of  this  motion  entitled  as  the  two  last  affi- 
davits, dated  3d  of  April. 

E.  CLARK,  defendant's  counsel  and  attorney. 
CAGGER  &  STEVENS,  plaintiff's  counsel  and  attorneys. 

JEWETT,  Justice.  A  writ  of  error  coram  nobis  cannot  prop- 
erly issue  only  by  order  of  this  court  upon  cause  shown .  by 
affidavit,  and  after  notice  to  the  opposite  party  or  his  attorney, 
(Ferris  agt.  Douglass,  20  Wend.  626 ;  Smith  and  others  agt. 
Kingsbury,  19  Wend.  620.)  It  is  insisted  by  the  counsel  for 
the  plaintiffs,  that  only  one  set  of  papers  can  be  read  on  these 
motions,  either  the  set  entitled  or  the  set  not  entitled  is  irrre- 
gular,  and  that  using  one  or  the  other,  enough  is  not  shown  to 
authorize  the  allowance  of  the  writ.  It  may  be  seen  that  the 
papers  on  which  these  motions  are  founded,  are  very 
[*177]  slovenly  got  up ;  a  portion  without  any  title,  the  Re- 
sidue entitled  in  the  causes  in  which  judgments  have 
been  recovered.  That  portion  of  the  papers  which  are  not 
entitled,  are  affidavits  proving  that  Comstock  was  twenty -one 
years  of  age  on  the  26th  day  of  April  last  and  his  petition  for 


NEW-YORK  PRACTICE  REPORTS.  177 

"Willoughby  agt.  Comstock. 

an  appointment  of  a  prochein  ami,  in  which  the  further  fact 
showing  a  judgment  to  have  been  recovered  is  set  forth ;  as- 
suming that  the  papers  on  which  these  motions  are  founded 
should  not  regularly  be  entitled  in  any  suit,  which  I  think  is 
the  correct  practice,  (Haiglit  agt.  Turner,  2  John  Rep.  317,) 
then  there  has  been  no  regular  notice  of  these  motions  given, 
to  the  party  or  his  attorney,  and  the  motions  should  be  denied 
on  that  ground.  On  the  other  hand,  assuming  that  the  papers 
should  be  entitled  in  the  suits  in  which  judgment  has  been 
recovered,  we  have  only  the  affidavits  of  Clark  and  the  notice 
of  motion  so  entitled,  in  neither  of  which  is  it  stated  that 
Comstock  was  under  twenty -one  years  of  age  at  the  time  of 
the  recovery  of  the  judgments ;  it  follows  that  using  either  set 
of  papers  without  the  aid  of  the  other  set,  the  motions  can- 
not be  sustained.  Motion  in  each  case  must  be  denied  with 
$7  costs,  but  without  prejudice. 
Kule  accordingly. 


SAMUEL  A.  WILLOUGHBY,  plaintiff  in  error  agt.  ELENTHEROS 
D.  COMSTOCK,  defendant  in  error. 

Conditions  and  principles  of  relief  on  motion  to  stay  proceedings-  on  execution, 
&c.,  until  cause  is  decided  in  the  court  of  errors. 

June  Term,  1845. 

MOTION  by  plaintiff  in  error  for  an  order  staying  all  pro- 
ceedings on  the  execution  issued  on  the  judgment  recovered 
in  this  court,  by  the  defendant  in  error  against  the  plaintiff  in 
error. 

It  appears  that  on  the  16th  day  of  September,  1844,  a  writ 
of  error  from  the  court  for  the  correction  of  errors,  was  issued 
upon  the  judgment,  returnable  on  that  day,  allowed,  and  order 
granted  to  make  it  a  stay  of  execution,  by  A.  Gr.  Hammond, 
a  commissioner,  and  on  the  same  day  notice  of  the  same  was 
duly  served  on  the  attorney  for  the  defendant  in  error.  The 


177  NEW-YORK  PRACTICE  REPORTS. 

Willoughby  agt.  Comstock. 

writ  was  duly  returned.  Subsequently  the  defendant  in  error 
being  dissatisfied  with  the  bond  filed  on  issuing  the  said  writ, 
moved  this  court  for  a  rule  vacating  said  order  to  stay.  On 
the  10th  of  January,  1845,  this  court  granted  an  order  allow- 
ing the  defendant  in  error  to  proceed  with  his  execution, 
unless  the  plaintiff  in  error  should  within  twenty  days  exe- 
cute a  new  bond  in  the  penalty  of  at  least  double  the  sum  of 
$16,505.74  and  the  sureties  should  justify.  On  the  20th  of 

January,  1845,  the  above  order,  by  an  order  granted 
[*178]  *of  the  latter  date,  was  extended  for  ten  days  beyond 

.the  time  allowed  by  the  first  order ;  pursuant  to  these 
orders  the  plaintiff  in  error  on  the  8th  day  of  February,  1845, 
filed  a  new  bond  with  the  justification  of  the  sureties  therein; 
the  bond  was  in  a  penalty  of  $33,012  bearing  date  the  29th 
of  January,  1845,  executed  by  the  plaintiff  in  error  with  four 
sureties,  annexed  to  which  were  the  affidavits  of  the  sureties ; 
one  of  whom  made  an  affidavit  before  a  commissioner  of  deeds 
in  Troy,  29th  January,  1845,  in  which  he  swore  he  was  a 
householder  and  worth  $13,000  over  and  above  all  debts, 
&c. ;  another  made  an  affidavit  before  the  first  judge  of  Bens- 
selaer  on  the  1st  day  of  February,  in  which  he  swore  he 
was  a  householder  and  worth  $10,000  above  all  debts, 
&c. ;  another  made  an  affidavit  before  said  commissioner  on 
the  6th  February,  in  which  he  swore  he  was  a  householder 
and  worth  $100,000  over  and  above  all  debts,  &c. ;  the  other 
made  an  affidavit  before  the  commissioner  who  allowed  the 
writ.  &c.,  on  the  8th  day  of  February,  in  which  he  swore  he 
was  a  householder  and  worth  $10,000  over  and  above  all 
debts,  &c. ;  the  bond  was  in  the  usual  form,  in  which  the 
judgments  were  recited  at  $16,505.74,  but  which  in  fact  ap- 
pears was  for  a  sum  over  one  hundred  thousand  dollars.  On 
the  8th  day  of  February  the  attorney  for  the  plaintiff  in  error 
served  a  notice  on  the  attorney  for  the  defendant  in  error 
(entitled  in  this  court)  of  the  making  and  filing  said  bond  pur- 
suant to  the  order  of  the  10th  of  January,  giving  the  names 
and  additions,  &c.,  of  the  sureties,  and  that  they  had  justified, 
&c.,  and  before  whom  the  justification  was  had.  On  the  llth 


NEW-YORK  PRACTICE  REPORTS. 
Willoughby  agt.  Comstock. 

day  of  February  the  attorney  for  defendant  in  error,  served 
on  the  attorney  for  the  plaintiff 'in  error  a  notice  of  exception 
to  the  sufficiency  or  the  sureties. 

S.  STEVENS,  plaintiff's  counsel. 
F.  ANTHON,  plaintiff's  attorney. 
M.  T.  REYNOLDS,  defendant's  counsel. 
R.  E.  MOUNT,  defendant's  attorney. 

JEWETT,  Justice.  If  the  order  of  the  10th  of  January  con- 
templated that  the  sureties  in  the  bond  should  justify  without 
any  notice  of  exception  by  the  attorney  for  the  defendant  in 
error,  before  it  should  be  deemed  a  compliance  with  the  order, 
it  is  clear  that  the  plaintiff  in  error  did  not  comply  with  that 
order.  In  order  to  justify  pursuant  to  the  Revised  Statutes  as 
amended  by  the  act  of  1844,  (  2  E.  S.  597,  598 ;  Sess.  Laws, 
1844,  466,)  the  sureties  should  have  justified  before  the  officer 
who  allowed  the  writ  of  error,  under  oath  or  by  affirmation, 
that  each  of  them  was  a  householder  or  freeholder  worth 
double  the  amount  of  the  penalty  of  the  bond  over  and  above 
all  demands,  on  notice  of  six  days  given  by  the  attorney  for 
the  plaintiff  in  error  to  the  attorney  for  the  defendant  in  error ; 
but  perhaps  the  true  reading  of  the  rule  is  that  the 
sureties  *should  justify  in  case  of  exception ;  and  so  [*179] 
it  seems  the  attorney  for  the  defendant  in  error 
understood  the  rule,  as  he  gave  notice  of  exception  on  the 
llth  February,  three  days  after  he  had  received  notice  of  bail 
being  filed,  &c.  On  the  15th  day  of  February,  the  attorney 
for  the  plaintiff  in  error,  deeming  his  notice  which  had  prev- 
iously been  served,  irregular,  inasmuch  as  it  was  entitled  in 
this  court,  served  a  new  notice  with  copy  of  the  bond  filed 
with  the  affidavits  of  justification  by  said  sureties ;  and  on  the 
19th  day  of  February,  fearing  that  the  bond  filed  was  defect- 
ive, the  plaintiff  in  error,  with  three  of  the  sureties,  executed 
a  new  bond  unexceptionable  in  form,  on  the  1st  day  of  March, 
and  filed  it  in  the  clerk's  office,  together  with  affidavits  made 
by  said  sureties  justifying,  one  in  the  sum  of  $10,012,  one  in 

VOL.  I.  17 


179  NEW-YORK  PRACTICE  REPORTS. 

Willoughby  agt  Comstock. 

$13,000,  and  the  other  in  $10,000,  and  served  a  notice  on  the 
attorney  for  defendant  in  error  of  the  names,  additions,  &c., 
of  the  sureties,  that  they  had  justified  and  that  the  same  was 
filed  with  the  affidavits,  &c.  The  plaintiff  in  error  has  failed 
to  comply  with  the  requirements  of  the  orders  of  the  10th  and 
20th  of  January,  his  sureties  should  have  justified  after  notice 
as  provided  by  the  Revised  Statutes  as  amended  by  the  act 
of  1844.  It  is  insisted  that  the  justification  by  the  three 
sureties  in  the  new  bond  executed  on  the  19th  February,  is 
sufficient  and  regular,  pursuant  to  the  Revised  Statutes  as 
amended  by  the  act  of  the  12th  of  February,  1845 ;  but  on 
recurring  to  the  dates  of  the  several  steps  taken  by  the  parties, 
it  may  be  seen  that  the  plaintiff  in  error  has  failed  to  complete 
his  bail  under  the  statute  as  last  amended ;  the  attorney  for 
the  plaintiff  in  error  received  notice  of  exception  on  the  llth 
February ;  the  act  of  the  12th  February,  1845,  requires  the 
party  within  ten  days  after  notice  of  exception  to  procure  his 
sureties  to  justify  by  affidavit,  or  within  said  ten  days  to  ex- 
ecute a  new  bond  with  new  sureties,  who  shall  justify,  &c., 
and  serve  a  copy  of  such  affidavits  of  justification  on  the 
attorney  of  the  defendant  in  error  within  the  ten  days.  The 
new  bond  was  executed  within  the  ten  days,  but  the  sureties 
did  not  make  their  affidavits  of  justification  until  the  21st  and 
24th  days  of  February,  and  the  bond  was  not  filed  till  the 
first  day  of  March ;  copies  of  the  affidavits,  as  required  by  the 
act  of  1845,  have  not  been  served  at  all ;  but  I  am  inclined 
to  relieve  the  plaintiff  in  error  once  more  in  this  matter.  The 
plaintiff  in  error  must  pay  to  the  defendant  in  error  $10  costs 
for  opposing  this  motion,  and  the  defendant  in  error  must  be 
allowed  to  proceed  with  his  execution  unless  the  plaintiff  in 
error  shall  within  thirty  days  execute  a  new  error  bond  in  the 
penalty  at  least  double  the  sum  of  $16,505.74,  with  two  or 

more  sureties,  who  shall  justify  pursuant  to  the  re- 
[*180]  quirement  of  the  statute  *relating  to  writs  of  error 

and  appeals.  And  in  case  the  executing  such  bond 
and  filing  the  same  as  aforesaid,  the  execution  to  stay  until 


NEW-YORK  PRACTICE  REPORTS.  180 

Dunckel  agt.  Farley. 

the  decision  of  the  cause  in  the  court  for  the  correction  of 
errors  and  until  the  further  order  of  this  court. 
Eule  accordingly. 


ADAM  DUNCKEL  agt.  GEORGE  FARLEY. 

In  an  action  of  trespass  quare  clausum  fregit  upon  wild  unoccupied  and  uninclosed 
lands,  where  the  circuit  judge  certifies  that  title  to  land  came  in  question  on 
the  trial,  although  the  plaintiff's  title  was  admitted  by  the  defendant,  the 
plaintiff  is  entitled  to  full  single  costs,  though  the  verdict  for  plaintiff  should 
be  for  six  cents  damages  and  six  cents  costs. 

June  Term,  1845. 

MOTION  by  plaintiff  for  the  allowance  of  full  single  costs 
according  to  the  statute. 

This  was  an  action  of  trespass  quare  clausum  fregit  upon 
wild  unoccupied  and  uninclosed  lands,  and  for  cutting  down, 
&c.,  the  wood,  trees  and  timber,  then  growing  and  being,  &c. 
Plea,  not  guilty.  Tried  at  the  last  Montgomery  circuit,  in 
which  the  plaintiff  had  a  verdict  for  six  cents  damages  and 
six  cents  costs.  The  circuit  judge  gave  a  certificate  that  the 
title  to  land  came  in  question  on  the  trial  of  the  cause  on  the 
part  of  the  plaintiff.  A  motion  is  now  made  in  behalf  of  the 
plaintiff  for  full  single  costs. 

H.  ADAMS,  plaintiff's  counsel  and  attorney. 
N.  HILL,  JR.,  defendant's  counsel. 
J.  C.  ALLEN,  defendants  attorney. 

JEWETT,  Justice.  It  is  enacted,  (2  R  S.  613,  §  3,)  that  "  In 
the  following  cases,  if  the  plaintiff  recover  judgment  by  de- 
fault, upon  confession,  verdict,  demurrer,  or  otherwise,  in  any 
action  or  proceeding  at  law,  he  shall  recover  the  costs  allowed 
for  services  in  the  court  in  which  the  action  shall  be  brought. 
1st.  In  all  the  actions  relating  to  real  estate  enumerated  in  the 
fifth  chapter  of  this  act,  and  in  all  proceedings  to  recover  tli 
possession  of  land  forcibly  entered  or  forcibly  detaine  }. 


180  NEW-YORK  PRACTICE  REPORTS. 

Dunckel  agt.  Farley. 

In  all  actions  in  which  the  title  to  lands  or  tenements,  or  a  right 
of  way  or  a  right  by  prescription  or  otherwise,  to  any  ease- 
ment in  any  lands  or  to  overflow  the  same,  or  to  do  any  other 
injury  thereto,  shall  have  been  put  in  issue  by  the  pleadings  or 
shall  have  come  in  question  on  the  trial  of  the  cause."  Was  the 
title  to  lands  put  in  issue  by  the  pleadings  ?  The  plea  of  not 
guilty  in  trespass  to  real  property,  not  only  puts  in  issue  the 
fact  of  the  trespass,  &c.,  but  also  the  title,  whether  freehold  or 
possessory,  &c.  (1  Chitty's  PL,  2  Am.  Ed.  491 ;  7  Term  Rep. 

350 ;  Hubbell  agt.  Rochester,  7  Cow.  Rep.  35  ;  Babcock 
[*181]  agt.  Lamb  and  *Doty,  8  Cow.  Rep.  115, 1  Cow.  Rep. 

238.)  The  defendant's  counsel  has  cited  the  case  of 
Wiclcham  agt.  /Seely,  (18  Wend,  649,)  as  an  authority  to  show 
that  the  plaintiff  is  not  entitled  to  costs,  but  should  pay  costs 
to  the  defendant ;  the  pleadings  in  that  case  did  not  put  in 
issue  the  title  to  lands ;  the  plea  was  leave  and  license,  on 
which  issue  was  joined ;  it  admitted  the  title  to  the  lands  to  be 
in  the  plaintiff.  I  cannot  see  any  analogy  between  that  case 
and  the  one  under  consideration ;  upon  the  ground  then,  that 
the  title  to  land  was  put  in  issue  by  the  pleadings,  I  am  of  the 
opinion  the  plaintiff  is  entitled  to  costs.  But  again,  the  plain- 
tiff obtained  the  certificate  of  the  circuit  judge,  that  the  title  to 
land,  in  fact,  came  in  question  on  the  trial ;  showing  by  it  that 
he  is  entitled  to  costs  under  that  alternative  of  the  provision 
of  the  statute  ;  but  it  is  said  it  is  not  true  that  the  title  did 
actually  come  in  question  on  the  trial,  inasmuch  as,  that  the 
defendant's  counsel  when  the  plaintiff  was  proceeding  to  give 
evidence  of  his  title,  admitted  the  title  to  the  land  in  question 
to  be  in  the  plaintiff.  This  course  could  not  and  ought  not 
to  affect  the  question  of  costs,  (8  Cow.  Rep.  115 ;)  the  plaintiff 
was  bound  to  be  ready  to  prove  his  title  under  the  pleadings ; 
and  it  appears  from  the  affidavits  read  on  this  motion,  that 
the  plaintiff  was  ready  to  prove  his  title,  and  was  only  pre- 
vented by  the  defendant's  counsel  admitting  it ;  and  upon  the 
suggestion  of  the  circuit  judge,  that  it  should  make  no  differ- 
ence in  the  result,  as  he  would  certify  that  the  title  to  land 
came  in  question.  The  motion  of  the  plaintiff  must  be  granted 


NEW-YORK  PRACTICE  REPORTS.  181 

Bangs  agt.  Strong. 

for  full  single  costs  to  be  taxed,  with  $10  costs  o.' 
motion. 

Rule  accordingly. 


ISAIAH  BANGS  and  WILLIAM  "W.  OLCOTT  agt.  JOSEPH  STRONG 
and  MALTBY  STRONG. 

On  a  motion  by  defendant  to  set  aside  or  perpetually  stay  execution,  on  the 
ground  that  he  has  been  discharged  from  all  his  debts  under  the  bankrupt 
law,  and  the  debt  upon  which  execution  was  issued  was  included  therein :  the 
plaintiff  may  have  an  opportunity  to  contest  the  validity  of  the  discharge,  by 
bringing  an  action  on  the  judgment,  where  his  papers  in  opposition  to  the  mo- 
tion, show  strong  evidence  that  the  defendant  was  guilty  of  fraud  and  wilful 
concealment  of  his  property,  &c.,  in  his  proceedings  to  obtain  his  discharge. 
The  execution  and  levy  in  such  case,  will  be  permitted  to  stand  as  security, 
uutil  the  decision  of  such  trial. 

June  Term,  1845. 

MOTION  on  behalf  of  Joseph  Strong,  one  of  the  defendants, 
for  a  rule  or  order,  setting  aside  two  executions  issued  on  the 
judgment,  recovered  by  the  plaintiffs  against  the  de- 
fendants ;  one  in  the  hands  of  the  sheriff  of  ^Living-     [*182] 
ston,  and  the  other  in  the  hands  of  the  sheriff  of 
Monroe ;    on  the  ground  that  the  defendant  had  been  dis- 
charged under  the  provisions  of  the  late  bankrupt  act,  since 
the  recovery  of  the  judgment. 

The  judgment  was  recovered  on  the  30th  October,  1838,  in 
debt  for  $50,000,  and  for  damages  and  costs  $63.97 ;  on  which 
several  executions  had  been  issued  and  regularly  returned,  not 
being  satisfied  previous  to  the  issuing  the  executions  now  in 
the  hands  of  the  sheriffs ;  there  is  now  remaining  due  and 
unpaid  of  the  judgment  $9,862.29,  with  interest  from  12th 
August,  1839.  It  appears  that  Joseph  Strong,  on  the  9th 
May,  1842,  presented  his  petition  in  the  district  court  for  the 
northern  district  of  New-York,  praying  to  be  declared  a  bank- 
rupt, pursuant  to  the  act  of  congress  of  the  United  States, 
entitled  "  An  act  to  establish  a  uniform  system  of  bankruptcy 


182  NEW-YORK  PRACTICE  REPORTS. 

Bangs  agt.  Strong. 

throughout  the  United  States,"  passed  August  19th,  1841 ; 
and  pursuant  to  proceedings  had  in  that  court,  was,  by  a  de- 
cree of  that  court,  made  the  13th  day  of  September,  1842, 
discharged  from  his  debts,  owing  by  him  at  the  time  of  the 
presentation  of  his  petition ;  and  a  certificate  of  such  dis- 
charge was  granted  to  said  defendant,  by  said  court ;  the  ex- 
edutions  were  issued  in  April  last,  by  virtue  of  which  certain 
personal  property  alleged  to  have  been  acquired  by  the  de- 
fendant, Joseph  Strong,  since  the  presentation  of  his  petition, 
has  been  levied  on,  and  is  now  held  by  the  sheriffs. 

E.  P.  SMITH,  defendants'  counsel. 
J.  W.  GILBERT,  defendants'  attorney. 
N.  HILL,  JR.,  plaintiffs'  counsel. 
SMITH  &  THOMPSON,  plaintiffs'  attorneys. 

JEWETT,  Justice.  It  is  insisted  that  the  discharge  and  certi- 
ficate should  be  deemed  a  full  and  complete  discharge  of  the 
defendants  from  this  debt,  and  that  therefore  the  executions 
should  be  set  aside.  This  motion  is  resisted  by  the  plaintiffs 
on  the  ground  that  the  defendant  was  guilty  of  gross  fraud  and 
wilful  concealment  of  his  property,  or  rights  of  property,  in  his 
proceedings  to  obtain  such  discharge ;  that  he  preferred  some  of 
his  creditors,  contrary  to  the  provisions  of  the  act,  and  that  he 
admitted  false  and  fictitious  debts  against  his  estate.  Several 
affidavits  have  been  read,  tending  very  strongly  to  prove  the 
truth  of  the  allegations  so  made,  and  unless  such  facts  can  and 
shall  be  satisfactorily  explained  or  rebutted,  it  cannot  be  denied 
but  that  such  discharge  and  certificate  may  be  impeached  suc- 
cessfully for  fraud  or  wilful  concealment  by  the  defendant,  of 
his  property  or  rights  of  property  in"  his  proceedings  to  obtain 
such  discharge.  It  is  true,  as  is  contended  by  the  counsel  for 
the  defendant,  that  prima  facie  the  discharge  and  certificate 
must  be  deemed  a  full  discharge  of  all  the  debts  of  the  defend- 
ant; but  the  act  expressly  provides  that  they  may  be  im- 
peached for  fraud  or  wilful  concealment,  £c.  Several 
[*183]  *cases  have  been  cited  to  show,  that  this  court  will 


NEW-YORK  PRACTICE  REPORTa  183 

Bangs  agt.  Strong. 

not  on  motion  of  this  kind  inquire  into  the  regularity 
of  the  proceedings,  nor  try  the  validity  of  an  insolvent  dis- 
charge on  affidavit.  (Cole  agt.  Stafford,  1  Caines,  249 ;  Reed 
agt.  Gordon  el  al.,  1  Cow.  50  ;  Noble  agt.  Johnson,  9  John.  259  ; 
Russell  and  Hall  agt.  Packard,  9  Wend.  431.)  These  were 
cases  in  which  the  defendant  was  in  custody  either  upon  a 
ca.  sa.  or  on  surrender  by  his  bail,  except  the  case  of  Reed  agt. 
Gordon  et  al.,  in  that  the  defendants  were  arrested  on  a  capias 
ad  respondendum.  The  English  courts  do  not  discharge  on 
common  bail,  on  arrest  after  the  defendant  has  been  discharged 
under  the  bankrupt  law,  where  it  appears  from  the  affidavits 
that  the  certificate  was  obtained  by  fraud.  (Vincent  agt. 
Bradky,  2  H.  Bl  1  j  Stacy  agt.  Freda-id,  2  B.  &  P.  390.)  It 
is  said  that  the  difference  between  the  practice  of  the  English 
courts,  and  our  own,  arises  from  the  conclusiveness  of  dis- 
charges under  our  insolvent  laws  as  evidence,  which  the 
English  legislature  have  not  extended  to  their  insolvent  laws. 
The  affidavit  of  Olcott,  one  of  the  plaintiffs,  shows  that  the 
defendant  has  no  real  property  upon  which  the  judgment  is  a 
lien,  that  he  has  reason  to  apprehend ;  if  the  execution  are  set 
aside  or  absolutely  stayed  till  the  termination  of  a  suit  brought 
upon  the  judgment,  the  defendant  will  have  made  way  with 
any  property  he  may  have,  and  the  only  chance  the  plaintiffs 
have  of  realizing  any  part  of  their  judgment  under  said  exe- 
cution, is,  by  having  the  same  remain  in  the  hands  of  said 
sheriffs,  with  power  to  levy  on  any  property  of  the  defendant 
that  may  be  found  ;  retaining  the  same  as  security  till  the  de- 
termination of  an  issue  to  be  made  upon  the  validity  of  said 
discharge.  I  do  not  question  the  principle  decided  by  the 
cases  referred  to,  nor  do  I  think  that  a  denial  of  the  motion  in 
this  case  in  the  least  conflicts  with  it.  But  while  this  court 
will  not  and  ought  not  to  try  the  validity  of  such  discharge 
on  affidavits,  I  think  it  should  do  what  it  may  to  protect  each 
party,  from  the  unjust  and  wrongful  acts  of  the  other ;  enough 
is  shown  by  the  affidavits  produced  in  opposition  to  this 
motion,  to  induce  a  belief  that  upon  an  issue  involving  the 
validity  of  the  discharge,  it  may  be  successfully  impeached  for 


183  NEW-YORK  PRACTICE  REPORTS. 

Bull  agt.  Babbitt. 

causes,  the  existence  of  which  the  act  declares  shall  avoid  it. 
"  Eeason  and  equity  unite  in  this  "  that  the  plaintiffs  should 
have  an  opportunity  to  try  the  legality  of  it,  without  losing 
such  security  as  they  have  by  virtue  of  any  levy  they  may 
have  had  made  on  the  personal  property  of  the  defendant 
J.  Strong,  in  case  they  should  be  successful  on  such  trial. 
How  shall  it  be  done  ?  My  opinion  is  that  the  motion  should 
be  granted,  unless  the  plaintiffs  shall  bring  an  action  upon  the 

judgment  within  sixty  days,  and  in  that  case  the  de- 
[*184]  fendants  have  to  plead  any  matter  of  *defence  they 

may  have,  except  that  they  shall  not  be  permitted  to 
plead  the  issuing  and  levy  of  the  executions  or  either  of  them, 
now  in  the  hands  of  the  sheriffs  of  Livingston  and  Monroe, 
mentioned  in  the  affidavits,  on  which  this  motion  is  founded ; 
that  the  said  executions  (in  case  such  action  shall  be  brought), 
with  the  levy  made  thereon,  remain  as  security  for  the  final 
result,  and  in  the  meantime  all  further  proceedings  on  said 
executions  be  stayed.  Should  the  defendant  J.  Strong  plead 
his  discharge,  the  plaintiffs  will  have  an  opportunity  to  put  in 
issue  and  test  its  validit}'.  No  costs  to  be  allowed  either  party 
as  against  the  other  on  this  motion,  in  case  such  action  shall 
be  commenced.  (1  Cowen  Rep.  42  ;  do.  165.) 


AAROK  BULL  agt.  JOSEPH  F.  BABBITT  et  al 

An  affidavit  for  a  motion  to  change  venue  must  show  where  the  venue  is  laid. 

June  Term,  1845. 

MOTION  by  defendants  to  change  venue. 

This  was  an  action  of  trover,  commenced  by  declaration 
16th  April,  1845  ;  no  issue  had  been  joined ;  defendants  swore 
to  merits,  and  the  facts  they  expected  to  prove  by  each  and 
every  of  the  witnesses  named.  Defendants'  papers  did  not 
show  where  the  venue  was  laid. 


NEW-YORK  PRACTICE  REPORTS.  184 

Hall  agt.  Miller. 

R.  J.  HILTON,  defendants'  counsel. 

E.  QuiN,  defendants'  attorney. 

JOHNSON  &  SCHUYLER,  plaintiff's  counsels  and  attorneys. 

JEWETT  Justice.     Denied  the  motion  on  the  ground  that 
defendants'  affidavits  did  not  show  were  the  venue  was  laid. 
Motion  denied  with  costs. 


EDWARD  HALL  agt.  ABNER  MILLER. 

A  verbal  agreement  between  parties  to  arbitrate  a  cause,  before  the  sitting  of  the 
circuit,  is  a  good  ground  of  opposition  to  a  motion  for  judgment  as  in  case  of 
nonsuit,  for  not  noticing  and  trying  the  cause  at  the  circuit. 

June  Term,  1845. 

MOTION  by  defendant  for  judgment  as  in  case  of  nonsuit. 

The  defendant's  affidavit  and  certificate  of  the  clerk  of  the 
circuit  showed  that  issue  was  joined  on  the  14th  January, 
1845 ;  the  cause  was  not  noticed  for  trial  at  the  Otsego  circuit, 
held  on  the  14th  April,  1845,  and  issues  of  a  younger  date 
were  tried  in  their  regular  order  on  the  calendar.  The  plain- 
tiff's attorney  swore  that  the  reason  the  cause  was  not  noticed 
for  trial  was,  that  he  made  an  agreement  with  the  defendant 
to  take  the  cause  out  of  court  and  submit  it  to  arbi- 
trators, and  that  he  had  full  authority  from  the  *plain-  [*185] 
tiff  to  make  the  agreement.  The  defendant,  as  the 
only  condition  upon  which  he  would  arbitrate  was,  that  he 
would  name  three  men  and  would  leave  it  to  them  or  either 
of  them.  And  plaintiff's  attorney  finally  consented  to  leave 
it  to  Mark  Gill,  one  of  the  three  men  named  by  defendant,  as 
sole  arbitrator,  which  was  agreed  to  by  defendant.  The 
agreement  was  made  a  few  days  before  the  April  circuit. 

.  K.  J.  HILTON,  defendant's  counsel. 
A.  L.  PRITCHARD,  defendant's  attorney. 
N.  HILL,  JR.,  plaintiff's  counsel. 
H.  BENNETT,  plaintiff's  attorney. 


185  NEW-YORK  PRACTICE  REPORTS. 

Otman  agt.  Fish. 

JEWETT,  Justice.     Denied  the  motion,  on  the  ground  that 
the  defendant  had  agreed  to  arbitrate. 

Motion  denied  with  costs,  without  prejudice. 


PHILIP  OTMAN  agt.  WILLIAM  B.  FISH  and  three  others. 

A  defendant  who  is  sued  in  trespass,  assault  and  battery,  as  a  public  officer,  and 
before  the  trial  makes  a  parol  settlement  with  the  plaintiff,  each  party  agree- 
ing to  pay  his  own  costs ;  cannot  disregard  such  a  settlement  and  go  on  and 
subpo3na  witnesses  to  the  circuit,  and  afterwards  move  for  double  costs. 

June  Term,  1845. 

MOTION  by  defendant  Fish,  that  he  be  allowed  to  proceed  to 
judgment  for  double  costs  of  defence,  to  be  taxed,  &c. 

This  suit  was  commenced  by  capias,  against  all  the  defend- 
ants jointly ;  the  action  trespass,  assault  and  battery.  Fish 
was  a  constable  in  the  discharge  of  official  duty  at  the  time  the 
cause  of  action  arose ;  he  pleaded  separately,  the  other  defend- 
ants jointly.  The  cause  was  noticed  for  trial  at  the  April  cir- 
cuit, in  Onondaga,  which  commenced  on  the  14th  of  April, 
1845.  On  the  15th  of  April,  an  agreement  in  writing  for  a 
consideration  mentioned,  was  entered  into  signed  by  plaintiffs 
attorneys,  by  which  the  suit  was  settled  as  to  the  three  last- 
mentioned  defendants.  Fish  was  not  present  at  the  settlement, 
and  swore  in  his  affidavit  that  the  settlement  was  without  his 
knowledge  or  consent ;  that  he  had  not  at  any  time  made  any 
settlement  or  arrangement  in  relation  to  the  cause,  with  plain- 
tiff or  any  other  person.  Defendant  showed  that  the  cause 
was  not  brought  to  trial  at  the  circuit  for  which  it  was  noticed, 
and  that  younger  issues  were  tried  in  their  regular  order  on 
the  calendar.  Plaintiff  showed  that  after  the  settlement  with 
the  three  defendants  as  before  stated,  Fish  requested  John  Ot- 
rnan,  plaintiff 's  son,  to  tell  plaintiff  that  if  he  was  willing  to 
drop  the  suit,  he  (Fish)  was  willing  to  do  so,  but  could  not  pay 
anything,  for  he  had  nothing  to  pay  with  ;  but  if  he  (plaintiff) 
would  drop  it,  they  each  could  send  their  witnesses  home,  and 


NEW-YORK  PRACTICE  REPORTS.  186 

The  People  agt.  Tracy. 

make  no  more  costs,  and  wanted  John  Otman  to  get 
plaintiff 's  answer ;  plaintiff  told  John  Otman  to  *tell  [*186] 
Fish  that  he  consented  to  do  so.  John  Otman  in  his 
affidavit  swore  that  he  informed  Fish,  the  defendant,  that  the 
other  defendants  had  agreed  to  pay  $15,  and  had  settled  with 
plaintiff  on  their  part,  and  that  if  he  (Fish)  paid  $10  the  suit 
could  be  settled  on  his  part.  Fish  said  he  was  glad  the  other 
defendants  had  settled,  and  he  wished  it  was  settled  on  his 
part  also,  but  that  he  was  unable  to  pay  anything ;  he  told 
John  Otman  to  tell  plaintiff  if  he  was  a  mind  to  settle  it  and 
drop  it  as  it  was,  he  would  settle  it  so,  but  could  not  pay  any- 
thing, because  he  was  unable.  John  Otman  then  saw  plaintiff 
and  stated  to  him  the  proposition  of  Fish,  to  which  plaintiff  re- 
plied, he  would  consent  to  it  and  drop  the  suit,  and  each  pay 
his  own  cost,  and  let  the  witnesses  go  home.  John  Otman 
then  went  immediately  to  Fish,  and  told  him  plaintiff  agreed 
to  it,  and  the  suit  might  be  considered  settled  in  that  way,  and 
Fish  replied,  very  well  then,  I  suppose  it  is  settled.  Plaintiff 
alleges  that  Fish  afterwards  subpoenaed  a  large  number  of  wit- 
nesses, and  employed  other  counsel,  with  an  intention  of  going 
on  with  the  cause,  and  making  a  large  bill  of  costs. 

SPOONER  &  LE  EOT,  defendants1  attorneys. 
N.  HlLL,  JR.,    plaintiffs  counsel. 
LAWRENCE  &  BROSNAN,  plaintiff's  attorneys. 

JEWETT,  Justice.  It  appears  that  the  suit  was  settled  with 
Fish,  after  the  settlement  with  the  other  defendants,  the  mo- 
tion must  be  denied. 

Motion  denied  with  costs. 


THE  PEOPLE  ex  rel  JOHN  BLACKSMITH  agt.   PHINEAS  L. 
TRACY,  First  Judge  of  Genesee  county  courts. 

A  mandamus  is  not  the  proper  remedy  to  correct  a  decision  of  a  judge  who  re- 
fuses to  issue  a  warrant  to  remove  certain  persons  other  than  Indians  from 


186  NEW-YORK  PRACTICE  REPORTS. 

The  People  agt.  Tracy. 

lands  belonging  to  or  occupied  by  any  nation  or  tribe  of  Indians  within  this 
state,  under  the  act  of  the  31st  March,  1821.  The  judge  in  such  a  case  acts 
judicially.  On  an  application  under  that  act,  the  district  attorney  should  be  the 
relator.  In  a  matter  of  public  right,  any  citizen  of  the  state  may  be  relator  in 
an  application  for  a  mandamus,  to  enforce  the  execution  of  the  common  law  or 
of  auy  act  of  the  legislature,  (when  that  is  the  proper  remedy  ;)  but  it  is  other- 
wise in  cases  of  private  or  corporate  rights,  there  the  title  to  relief  at  the  suit  of 
the  relator  must  appear. 

A  motion  to  quash  an  alternative  mandamus,  to  compel  a  judge  to  issue  his  war- 
rant under  the  above-mentioned  act,  will  be  granted  where  it  appears  there 
was  not  due  proof  upon  the  original  application  made  before  the  judge  for  the 
warrant.  And  also  where  it  appears  the  premises  in  the  alternative  writ  are 
not  properly  designated  and  described,  and  that  it  varies  materially  from  the 
rule  allowing  it. 

June  Term,  1845. 

MOTION  by  defendant  Tracy,  to  quash  an  alternative  man- 
damus. 

On  the  6th  March,  1845,  this  court  granted  a  rule 
[*187]  in  this  case,  that  an  alternative  *mandamus  issue  to 
be  directed  to  the  defendant,  requiring  him  to  issue  a 
warrant  to  remove  certain  intruders  other  than  Indians  from 
the  Tonawanda  reservation ;  on  the  application  made  by  the 
relator,  as  one  of  the  chiefs  of  the  Seneca  nation  of  Indians 
residing  on  said  reservation ;  or  that  said  judge  show  cause 
to  this  court  on  the  first  day  of  the  then  next  May  term  of  this 
court,  why  a  peremptory  mandamus  should  not  issue.  An 
alternative  writ  of  mandamus  was  issued,  tested  the  first  Mon- 
day of  January,  1845,  by  Yerplank  &  Martindale,  as  attorneys 
for  the  relator  ,  neither  of  whom  being  district  attorney  of 
Genesee  county,  which  was  served  on  the  judge  the  25th  day 
of  March  last ;  it  recited  that  on  the  8th  day  of  January,  1845, 
John  H.  Martindale,  then  district  attorney  of  the  county  of 
Genesee,  made  complaint  to  said  judge,  that  certain  persons 
thereinafter  named,  other  than  Indians,  were  then  intruders 
upon  and  had  settled  or  resided  on  lands  belonging  to  or  oc- 
cupied by  the  Tonawanda  Indians,  within  the  limits  of  the 
county  of  Genesee,  and  that  the  said  district  attorney  applied 
to  said  judge  to  issue  his  warrant  under  his  hand  and  seal, 
directed  to  the  sheriff  of  the  county  of  Genesee,  commanding 


NEW-YORK  PRACTICE  REPORTS.  18*7 

The  People  agt.  Tracy. 

him  within  ten  days  after  the  receipt  thereof,  to  remove  such 
persons  from  such  lands ;  and  that  on  the  llth  day  of  January, 
1845,  upon  examination  of  the  matters  stated  in  the  com- 
plaint, due  proof  was  made  before  and  testified  to  him  by  Ely 
S.  Parker,  of  the  fact  of  such  settlement  or  residence  on  such 
lands  of  certain  persons  named  in  said  complaint  other  than 
Indians,  to  wit:  (naming  certain  persons ;)  nevertheless  that 
said  judge  unjustly  refused  to  issue  his  warrant  as  aforesaid, 
wherebjr  the  said  Tonawanda  Indians  had  been  greatly  inter- 
rupted in  the  occupation  and  enjoyment  of  the  said  lands,  &c., 
as  informed  from  the  relation  of  John  Blacksmith,  a  chief  of 
the  said  Tonawanda  Indians.     The  writ  then  commanded  said 
judge  to  issue  his  warrant  under  his  hand  and  seal,  directed 
to  the  sheriff  of  the  county  of  Genesee,  commanding  him, 
within  ten  days  from  the.  receipt  thereof  to  remove  said  per- 
sons other  than  Indians,  so  as  aforesaid  settling  or  residing 
on  said  lands,  belonging  to  or  occupied  by  the  said  Tona- 
wanda Indians,  from  such  lands,  or  show  cause,  &c.     The 
time  for  making  the  return  to  this  writ  was  enlarged  by  an 
order  of  the  chief  justice,  on  the  19th  April,  to  the  1st  Tues- 
day in  June  then  next.     A  motion  is  now  made  on  the  part 
of  Judge  Tracy,  for  an  order  that  the  writ  of  alternative 
mandamus  thus  issued,  be  superseded  or  quashed  on  several 
grounds,  viz :  1st,  that  the  writ  does  not  allege  the  existence 
of  any  nation  or  tribe  of  Indians  except  the  Tonawanda  In- 
dians, and  alleges  that  they  are  a  nation  or  tribe  only  argu- 
mentatively,  so  that  uo  direct  issue  can  be  formed 
therein.     *2d,  that  the  writ  varies  from,  and  is  not     [*188] 
authorized  by  the  rule  allowing  a  writ  to  issue,  among 
other  things  in  this ;  that  said  rule  designates  the  relator  as 
••one  of  the  chiefs  of  the  Seneca  nation  of  Indians,"  whereas 
in  said  writ  he  is  alleged  to  be  "  a  chief  of  the  said  Tonawanda 
Indians."     3d,  that  said  writ  is  defective  in  form  and  sub- 
stance,  containing  no  allegations  upon  which  a  peremptory 
writ  could  be  issued  if  admitted,  or  on  which  a  material  issue 
of  fact  could  be  tendered.     4th,  that  said  writ  is  signed  and 
prosecuted  by  attorneys  other  than  the  district  attorney  or 


188  NEW-YORK  PRACTICE  REPORTS. 

The  People  agt.  Tracy 

other  attorney  legally  authorized  to  represent  any  tribe  or  na- 
tion of  Indians.  5th,  that  it  is  not  alleged  in  said  writ  except 
by  inference,  that  there  are  any  lands  within  the  county  of 
Genesee  belonging  to  the  said  Tonawanda  Indians,  or  to  any 
nation  or  tribe  of  Indians,  or  that  the  Tonawanda  Indians  or 
any  nation  or  tribe  of  Indians  occupy  any  lands  within  the 
county  of  Genesee.  6th,  that  said  wri^  does  not  designate  or 
describe  with  sufficient  certainty  the  lands  therein  mentioned 
or  intended,  or  any  lands  whatever,  and  that  a  warrant  could 
not,  if  issued  in  pursuance  of  the  command  of  said  writ,  be 
executed. 

A.  TABER,  defendants  counsel. 

J.  L.  BROWN,  defendants  attorney. 

J.  VAN  BUREN,  attorney-general,  relator's  counsel. 

VERPLANK  &  MARTINDALE,  relator's  attorneys. 

JEWETT,  Justice.  The  Tonawanda  reservation,  is  a  tract  of 
land  situate  in  the  county  of  Genesee,  well  known  as  such, 
and  as  well  defined  in  its  location  and  boundaries  by  that  de-- 
scription  as  any  tract  or  lot  of  land  in  any  other  part  of  the 
stats,  is  known  by  the  number  of  lots,  &c.,  from  which  tract 
by  the  terms  of  the  rule  of  the  6th  of  March,  the  writ  of  alter- 
native mandamus  should  have  commanded  the  judge  to  issue 
his  warrant  to  remove  the  intruders  therein  complained  of. 
The  writ  foils  to  designate  that  reservation  as  the  premises  upon 
which  the  persons  complained  of  had  intruded.  It  commands 
the  judge  to  issue  his  warrant  to  the  sheriff  of  Genesee  county, 
commanding  him,  &c.,  to  remove  the  persons  complained  of 
(not  from  the  Tonawanda  reservation  but)  from  lands  belonging 
to  or  occupied  by  the  Tonawanda  Indians  within  the  limits  of  tfa 
county  of  Genesee  ;  a  clear  departure  from  the  terms  of  the  rule 
in  the  description  of  the  premises  upon  which  the  intrusion 
complained  of  had  been  made,  and  upon  which  the  judge  was 
required  to  issue  his  warrant  to  remove  such  intruders ; 
the  writ  in  this  respect  is  clearly  bad,  not  only  as  unau- 
thorized by  the  rule,  but  if  the  command  of  the  writ  should 


NEW-YORK  PRACTICE  REPORTS.  189 

The  People  agt.  Tracy. 

be  complied  with  by  the  judge,  his  warrant  could  not  be 
executed,  unless  indeed  it  could  be  supposed  that  the  sheriff 
knew  the  particular  lands  belonging  to  or  occupied  by  the 
Tonawanda  Indians  within  his  county.  The  Avrit 
*should  have  commanded  the  judge  to  issue  his  [*189] 
warrant,  &c.,  to  remove  the  intruders  from  the 
lands  known  and  described  as  the  "  Tonawanda  reserva- 
tion" within  the  county  of  Genesee.  This  proceeding  is  sup- 
posed to  be  authorized  by  the  provisions  of  the  statute  passed 
31st  March,  1821.  (See  Session  Laws  1821,  p.  183.)  The  1st 
section  of  the  act  declares  that  "  it  shall  be  unlawful  for  any 
person  or  persons  other  than  Indians,  to  settle  or  reside  upon 
any  lands  belonging  to  or  occupied  by  any  nation  or  tribe  of 
Indians  within  this  state ;  and  that  all  leases,  contracts  and 
agreements  made  by  any  Indians,  whereby  any  person  or  per- 
sons other  than  Indians  shall  be  permitted  to  reside  upon  such 
lands,  shall  be  absolutely  void  ;  and  if  any  person  or  persons 
shall  settle  or  reside  on  any  lands  contrary  to  this  act,  it  shall 
be  the  duty  of  any  judge  of  any  court  of  common  pleas  of 
the  county  within  which  such  lands  shall  be  situated,  on  com- 
plaint made  to  him,  and  on  due  proof  of  the  fact  of  such  settle- 
ment or  residence,  to  issue  his  warrant  under  his  hand  and 
seal,  directed  to  the  sheriff  of  such  county,  commanding  him, 
within  ten  days  after  the  receipt  thereof,  to  remove  such  per- 
son or  persons  so  settling  or  residing,  with  his,  her  or  their 
families,  from  such  lands."  It  is  made  the  duty  of  the  sheriff 
to  execute  such  warrant.  By  the  5th  and  6th  sections  of  the 
act,  it  is  provided  "  that  it  shall  be  the  duty  of  the  district 
attorneys  respectively  of  the  several  counties  in  this  state  in 
which  any  lands  belonging  to  any  Indian  tribe  shall  be  situ- 
ated, (among  other  things)  to  make  complaint  of  all  intrusions 
upon  Indian  lands,  forbidden  by  the  act ;  and  from  time  to 
time  to  make  inquiries  whether  any  persons  other  than  Indians 
are  settled  upon  such  lands,  and  to  cause  them  to  be  removed  in 
the  manner  therein  prescribed."  It  is  objected  that  the  relator, 
John  Blacksmith,  described  in  the  rule  as  "  one  of  the  chiefs 
of  the  Seneca  nation  of  Indians,  residing  on  the  Tonawanda 


189  NEW-YORK  PRACTICE  REPORTS. 

The  People  agt.  Tracy. 

reservation,"  and  in  the  writ  "  a  chief  of  the  Tonawanda  In- 
dians," shows  no  title  either  to  appear  as  relator,  or  to  claim 
the  relief  prayed  for.  In  a  matter  of  public  right,  any  citizen 
of  the  state  may  be  a  relator  in  an  application  for  a  mandamus 
(when  that  is  the  appropriate  remedy),  to  enforce  the  execu- 
tion of  the  common  law,  or  of  an  act  of  the  legislature.  It 
is  otherwise  in  cases  of  private  or  corporate  rights :  there  the 
title  to  relief  at  the  suit  of  the  relator  must  appear,  or  the 
application  will  not  be  heard.  (The  People  agt.  Collins  and 
others,  19  Wend.  56.)  I  am  of  opinion  that  by  the  terms  and 
spirit  of  the  statute  under  which  this  proceeding  has  been  had, 
no  other  than  the  district  attorney  of  the  county  of  Genesee 
(in  which  the  lands  intruded  upon  are  situated)  could  regu- 
larly be  a  relator.  The  remedy  for  the  act  complained 
[*190]  of  is  provided  by  the  *statute,  as  well  as  the  officers 
to  carry  it  into  execution.  It  is  made  the  duty  of 
the  district  attorney  to  make  complaint  of  all  intrusions  upon 
Indian  lands  forbidden  by  the  act,  and  from  time  to  time  to 
make  inquiries  whether  any  persons  other  than  Indians  are 
settled  upon  such  lands,  and  to  cause  them  to  be  removed  in  the 
manner  therein  prescribed.  Without  the  act,  John  Blacksmith 
or  any  other  person  could  not  claim  such  summary  proceed- 
ings to  remove  intruders  upon  Indian  lands ;  and  with  the  act, 
no  other  person  is  authorized  by  its  provisions  to  make  com- 
plaint of  such  intrusions,  or  to  cause  the  intruders  to  be 
removed,  but  the  district  attorney  of  the  county  in  which  the 
lands  are  situated.  It  is  also  insisted  that  the  writ  has  been 
improvidently  issued,  on  the  ground  that  it  is  not  the  appro- 
priate remedy  to  correct  the  error  of  Judge  Tracy  in  refusing  to 
issue  his  warrant,  having  heard  the  proof  offered  of  the  fact 
of  settlement  or  residence,  by  the  persons  complained  of,  upon 
lands  belonging  to  or  occupied  by  the  Tonawanda  Indians. 
It  will  be  seen  by  the  provisions  of  the  act,  that  the  following 
facts  must  be  duly  proved  to  or  before  the  judge,  before  he  is 
ever  authorized  to  issue  his  warrant.  That  there  were  lands 
situated  in  the  county  of  Genesee,  belonging  to  or  occupied  by  a 
nation  or  tribe  of  Indians  ;  that  some  person  or  persons  other  than 


NEW-YORK  PRACTICE  REPORTS.  190 

The  People  agt.  Tracy. 

Indians  had  settled  on  or  resided  on  some  part  of  such  lands. 
The  proof  made  to  or  before  the  judge,  consisted  of  the  affi- 
davit of  one  Parker,  in  which  he  swore  "  that  the  following 
persons  other  than  Indians  are  settled  or  reside  on  the  Tona- 
wanda  reservation,  on  lands  owned  and  occupied  by  the  Tona- 
wanda  Indians,  in  the  county  of  Genesee,  to  wit :  (naming 
several  persons  ;)  and  that  the  following  aforenamed  persons 
are  settled  upon  said  lands  by  consent  of  such  Indians,  to 
wit :  (naming  several  of  such  persons ;)  that  he  is  informed 
and  believes  that  (naming  five  persons)  claim  under  contracts 
or  agreements  or  lease  from  third  persons,  and  not  said  In- 
dians, as  this  deponent  is  informed  and  believes."  This  is  the 
substance  of  the  proof  made  before  the  judge,  upon  the  com- 
plaint made  by  the  district  attorney.  The  judge  refused  to 
issue  his  warrant  to  remove  the  persons  complained  of.  Can 
it  be  said  that  this  affidavit  furnished  to  the  judge  "  due 
proof  of  the  fact  of  such  settlement  or  residence  ?"  The  de- 
ponent Parker  does  not  profess  to  have  any  knowledge  of  the 
fact :  he  swore  to  nothing  beyond  information  and  belief.  In 
my  opinion  the  judge  evinced  a  sound  judgment,  in  deciding 
against  the  application  founded  upon  that  proof,  as  falling 
far  short  of  the  proof  required  by  the  statute.  And  besides 
I  am  constrained  to  say,  that  from  the  best  consideration  of 
the  case  that  I  am  able  to  give.  I  am  of  opinion  that  the  de- 
cision of  the  judge  in  this  case,  if  erroneous,  cannot 
be  ^corrected  by  mandamus,  the  judge  in  his  refusal  [*191] 
acted  judicially.  ( The  People  ex  rel.  Doughty  agt.  The 
judges  of  Dutchess  common  pleas,  20  Wend.  658,  and  the  cases 
there  cited.)  Several  other  questions  have  been  raised  on  the 
argument  of  this  motion,  but  which  I  forbear  to  consider,  as 
unnecessary,  having  come  to  the  conclusion  upon  the  exam- 
ination of  the  question  already  considered,  that  the  rule  of 
the  6th  of  March  last  and  all  subsequent  proceedings  therein, 
should  be  vacated  and  set  aside,  and  that  the  writ  of  alter- 
native mandamus  should  be  quashed ;  but  without  costs  to 
either  party  as  against  the  other. 

Kule  accordingly. 

VOL.  I.  18 


191  NEW-YORK  PRACTICE  REPORTS. 

"Wagner  agt.  Adams. 


ELIZABETH  CRANE  agt.  DAVID  CROFOOT. 

A  notice  of  motion  must  specify  one  certain  time  only,  when  the  motion  will  be 
brought  on,  it  cannot  be  made  in  the  alternative. 

June  Term,  1845. 

MOTION  by  defendant  to  have  a  statement  of  facts  drawn 
up  under  the  direction  of  the  chief  justice,  or  one  of  the  jus- 
tices of  this  court,  to  be  incorporated  in  the  record,  to  enable 
the  defendant  to  prosecute  a  writ  of  error. 

The  notice  of  motion  was  given  for  "  the  second  Monday  of 
the  next  May  term,"  provided  the  court  would  entertain  and 
hear  the  motion  at  said  term ;  if  not,  that  then  the  motion 
would  be  made  on  the  first  Tuesday  of  June  next,  &c. 

C.  STEVENS,  defendant's  counsel. 
E.  C.  REED,  defendants  attorney. 
J.  NEWLAND,  plaintiff's  counsel. 
T.  P.  GROSVENOR,  plaintiff's  attorney. 

JEWETT,  Justice.    The  notice  is  in  improper  form.    It  cannot 
be  in  the  alternative,  but  must  be  for  one  certain  time. 
Motion  denied  with  costs. 


JOHN  I.  WAGNER  agt.  HENRY  ADAMS. 

It  is  not  necessary  that  the  plaintiff  should  himself  execute  a  bond  for  security 
for  costs,  two  sufficient  sureties  will  do. 

June  Term,  1845. 

MOTION  by  defendant  to  set  aside  or  vacate  the  bond  filed 
in  this  cause  for  security  for  costs. 

The  plaintiff  was  a  non-resident,  and  the  bond  filed  was 
executed  by  two  persons  without  the  plaintiff". 

H.  ADAMS,  defendant's  counsel. 
LOBDELL  &  ADAMS,  defendant's  attorneys. 


XEW-YORK  PRACTICE  REPORTS.  192 

Spooner  agt.  Frost. 

J.  NEWLAND,  plaintiffs  counsel. 
HAMMOND  &  BATES,  plaintiff's  attorneys. 

H.  Adams,  for  defendant,  persisted  that  the  statute  on  this 
subject  should  be  construed  as  requiring  the  plaintiff 
himself  to  execute  the  bond  *with  one   or  more     [*192] 
sureties.     J.  Newland,  for  plaintiff,  cited  2  R.  S.  575, 
§  4 ;  4  Paige,  273,  showing  that  the  plaintiff  need  not  join  in 
the  bond. 

JEWETT,  Justice.  It  is  not  necessary  that  the  plaintiff 
should  himself  execute  the  bond,  when  he  does  not,  two  suffi- 
cient sureties  must  do  so. 

The  motion  was  disposed  of  on  other  points. 


ADIN  M.  SPOONER  agt.  DAVID  FROST 

A  charge  of  one  dollar  for  a  precept  issued  to  collect  costs,  given  on  decision  of 
a  motion,  cannot  be  allowed ;  all  the  costs  are  covered  by  the  amount  given 
on  the  decision  of  the  motion.  The  teste  of  a  precept  in  the  name  of  Greene 
C.  Bronson,  chief  justice,  as  of  January  term,  1845,  is  amendable. 

June  Term,  1845. 

MOTION  to  set  aside  a  precept  for  irregularity. 

A  motion  was  made  by  plaintiffs  to  set  aside  a  report  of 
referees ;  and  was  denied  with  seven  dollars  costs  on  the  9th 
of  April,  1845.  The  costs  remaining  unpaid,  a  precept  was 
issued  some  time  thereafter,  and  directed  the  sheriff  to  collect 
the  seven  dollars  costs  and  one  dollar  for  the  costs  of  the  precept, 
besides  his  fees.  The  precept  was  tested  of  January  term, 
1845,  and  in  the  name  of  Greene  C.  Bronson,  as  chief  justice. 

E.  W.  PECKHAM,  plaintiff's  counsel. 
D.  C.  LE  ROY,  plaintiff's  attorney. 
D.  BROWN,  defendant's  counsel. 
M.  TEMPLE,  defendant's  attorney. 

JEWETT,  Justice.     The  charge  of  one  dollar  for  the  precept 


192  NEW-YORK  PRACTICE  REPORTS. 

Hull  agt  Joesbuiy. 

is  not  proper,  all  the  costs  are  covered  by  the  seven  dollars, 
which  must  include  the  issuing  of  the  precept.  The  teste  of 
the  precept  is  amendable. 

Motion  granted  with  ten  dollars  costs,  with  leave  to  defend- 
ant to  amend,  &c. 


CHESTER  HULL,  JR.  agt.  JOSEPH  JOESBURY. 

The  defendant  sued  by  capias  in  tort,  one  appears  and  puts  in  special  bail  and 
the  other  returned  non  est  invenlus,  and  the  declaration  is  drawn  and  served 
only  against  the  defendant  appearing.  A  motion  to  set  aside  the  declaration 
on  the  ground  that  it  does  not  conform  to  the  capias  and  that  one  defendant 
in  an  action  of  tort  in  such  a  case  cannot  be  declared  against  alone,  will  be 
denied  with  coats. 

June  Term,  1845. 

MOTION  by  defendant  to  set  aside  declaration  for  ir- 
regularity. 

The  capias  was  issued  against  Joseph  Joesbury  and  Samuel 
Dugard,  for  libel,  and  an  order  thereon  indorsed  requiring  the 
defendants  to  be  held  to  bail.    Joesbury  appeared  by  Adams 
&  Watson,  his  attorneys,  and  put  in  special  bail  in  the  cause, 
"Joseph  Joesbury  impleaded  with  Samuel  Dugard 
ads.  ^Chester  Hull,  Jr."  On  the  8th  May,  1845,  Adams     [*193] 
&  Watson  were  served  with  a  declaration  against 
Joseph  Joesbury  alone.     The    capias  was  not  served  on 
Dugard 

E.  W.  PECKHAM,  defendants  counsel. 
ADAMS  &  WATSON,  defendants  attorneys. 
H.  H.  MARTIN,  plaintiff's  counsel. 
WM.  DUER,  plaintiff's  attorney. 

The  defendant  moved  on  the  ground  that  the  declaration 
must  conform  to  the  capias.  That  one  defendant  only  could 
not  be  declared  against  in  tort,  where  the  capias  was  returned 


NEW-YORK  PRACTICE  REPORTS.  193 

McDermott  agt.  Davison. 

tion  for  reference,  and  was  bound  to  know  what  the  decision 
was.     The  motion  must  be  denied,  with  costs. 
Eule  accordingly. 


[*194]    *  JAMES  MCDERMOTT  and  SAMUEL  OWEN  agt.  SAM- 
UEL DAVISON. 

An  attorney  commencing  a  suit  in  ejectment  must  first  get  the  written  authority 
of  plaintiff  to  commence  it. 


Term,  1845. 

MOTION  by  defendant  to  strike  out  the  name  of  Samuel 
Owen  from  the  declaration  and  the  counts  therein. 

This  was  an  action  of  ejectment  ;  declaration  and  notice 
served  on  the  llth  February,  1845.  The  motion  was  made 
on  the  ground  that  plaintiff's  attorney  had  no  authority  from 
plaintiff  Owen  to  commence  the  suit.  It  appeared  that  Owen 
and  two  other  plaintiffs  gave  a  written  authority  to  plaintiff's 
attorney,  in  the  year  1837,  to  commence  a  suit  in  ejectment 
for  the  same  premises,  which  suit  terminated  in  favor  of  the 
defendant;  and  Owen  in  an  affidavit  read  on  this  motion 
swore,  that  he  had  revoked  the  former  authority  given  by  him 
to  his  attorney,  and  that  the  present  suit  was  commenced  and 
carried  on  against  his  consent.  It  appeared  on  the  part  of 
plaintiff  McDermott,  that  notwithstanding  Owen  had  made 
such  an  affidavit,  he  (Owen)  admitted  that  it  was  procured 
under  improper  influences,  and  he  was  willing  and  desirous 
the  suit  should  go  on,  and  gave  a  written  consent  to  plain- 
tiffs' attorney  to  that  effect,  after  notice  of  thismotion  had 
been  given. 

M.  T.  EEYNOLDS,  defendants  counsel. 
L.  FARRAR,  defendants  attorney. 
J.  A.  COLLIER,  plaintiffs'1  counsel. 
L.  M.  DRURY,  plaintiff's1  attorney. 

JEWETT,  Justice.    Denied  the  motion,  on  the  ground,  that 
Owen's  authority  had  been  procured  since  the  notice  of  the 


193  NEW-YORK  PRACTICE  REPORTS. 

Moffat  agt.  Judd. 


personally  served  on  him>  and  a  return  of  non  est  inventus  as 
to  the  other. 

JEWETT,  Justice.    Thought  differently  —  and  denied  tb 
motion,  with  costs. 


WILLIAM  B.  MOFFAT  agt.  JOHN  M.  JUDD. 

On  a  motion  for  judgment  as  in  case  of  nonsuit,  and  it  appearing  the  cause  was 
referred,  before  the  circuit,  by  an  order  entered  at  the  special  term,  but  no 
copy  of  such  order  of  reference  served  until  after  notice  of  the  former  motion 
given ;  the  motion  will  be  denied  with  costs,  on  the  ground  that  it  was  not 
necessary  to  serve  a  copy  of  the  order — the  defendant  had  notice  of  it  when 
the  motion  for  reference  was  made. 

June  Term,  1845. 

MOTION  by  defendant  for  judgment  as  in  case  of  nonsuit. 

Defendant  showed  that  issue  was  joined  on  the  2d  October, 
1844,  and  two  circuits  had  passed  and  the  plaintiff  had  not 
noticed  the  cause  for  trial  at  either ;  that  younger  issues  were 
tried,  &c. ;  the  first-mentioned  circuit  was  third  Monday  in 
March  last,  and  the  second  on  the  first  Monday  of  May  last, 
venue  in  the  city  and  county  of  New- York.  Plaintiff  showed 
that  on  the  5th  February,  1845,  this  cause  was  referred  by  an 
order  entered  at  the  February  special  term,  that  his  attorney 
did  not  receive  a  copy  of  such  order  until  29th  March  follow- 
ing. Defendant  stated  that  a  copy  of  the  order  of  reference 
was  not  served  on  his  attorney  until  two  days  after  the  notice 
of  this  motion  had  been  given. 

D.  WRIGHT,  defendants  counsel. 
GEO.  B.  WOOD,  defendants  attorney. 
J.  EDWARDS,  plaintiff's  counsel. 
C.  W.  CAMPBELL,  plaintiff'1  s  attorney. 

JEWETT,  Justice.    It  was  not  necessary  to  serve  a  copy  of 
the  order  of  reference.     The  defendant  had  notice  of  the  mo- 


NEW-YORK  PRACTICE  REPORTS.  194 

Snyder  agt.  Olmstead. 

motion  had  been  given,  but  ordered  the  plaintiffs  to  pay  ten 
dollars  costs  of  the  motion. 
Eule  accordingly. 


ALEXANDER  SNYDER  agt.  CHARLES  A.  OLMSTEAD. 

An  order  for  depositing  books,  &c.,  with  county  clerk  for  the  benefit  of  a  party, 
must  be  strictly  complied  with.  Leave  given  to  the  party  seeking  discovery, 
to  examine  the  books,  &c.,  at  the  store  of  the  owner,  will  not  answer  as  a  sub- 
stitute. A  motion  to  vacate  an  order  for  depositing  books,  &c.,  should  first  be 
made  before  the  officer  granting  it. 

June  Term,  1845. 

MOTION  by  plaintiff  to  vacate  order  of  circuit  judge,  re- 
quiring books  to  be  deposited  with  county  clerk. 

This  motion  was  made  by  plaintiff,  to  vacate  the  order  of 
the  circuit  judge,  requiring  plaintiff  to  deposit  books,  &c.,  with 
the  county  clerk,  on  the  ground  that  the  plaintiff  had  given 
defendant's  attorney  leave  to  examine  the  books  and  papers. 
&c.,  which  related  only  to  the  suit  in  controversy,  at  the  store 
of  .the  plaintiff.  ,,. 

E.  PEARSON,  plaintiffs  counsel  and  attorney. 
M.  T.  EEYNOLDS,  defendants  counsel. 
L.  J.  LANSING,  defendant's  attorney. 

*JEWETT,  Justice.    The  plaintiff  cannot  substitute     [*195] 
that  mode  of  examination,  as  a  compliance  with  the 
order ;  he  should  have  deposited  his  books,  &c.,  according  to 
the  order.    The  motion  to  vacate  the  order  should  have  been 
made  before  the  officer  granting  it  in  the  first  place. 

Motion  denied  with  costs. 


195  NEW-YORK  PRACTICE  REPORTS. 

The  People  agt.  Oakes. 

THE  PEOPLE  agt.  ANDREW  OAKES. 
THE  SAME  agt.  ANDREW  OAKES,  Coroner  of  Kings  County. 

On  an  appeal  from  the  taxation  of  a  bill  of  costs,  the  appellant  must  show  by 
affidavit  that  the  taxation  was  opposed  and  the  items  objected  to  in  the  bill 
were  taxed  by  the  officer  under  objection.  It  will  not  answer  to  state  in  the 
notice  of  motion  on  the  appeal,  merely  the  items  objected  to,  and  the  grounds 
of  objection. 

June  Term,  1845. 

MOTION  by  defendant  for  retaxation  of  costs. 

The  defendant  appealed  from  the  taxation  of  a  bill  of  costs 
in  each  cause,  by  J.  W.  Edmonds,  circuit  judge  of  the  1st 
circuit.  Defendant's  attorney  set  forth  in  his  notice  that  he 
appealed  from  the  taxation  of  the  bills  of  costs  in  each  cause 
(a  bill  of  costs  in  each  cause  being  annexed),  by  J.  W. 
Edmonds,  Esq.,  to  this  court,  and  went  on  in  his  notice  and 
gave  the  items  and  grounds  of  objection ;  but  did  not  produce 
any  affidavit  showing  that  any  person  appeared  before  the 
taxing  officer,  or  that  any  items  in  the  bill  were  objected  to, 
or  that  the  officer  taxed  the  objectionable  items  specified  in 
the  notice. 

P.  CAGGER,  defendants  counsel. 
N.  F.  WARING,  defendant's  attorney. 
MR.  BOWDOIN,  counsel  for  the  people. 
WM.  WHITNEY,  attorney  for  the  people. 

JEWETT,  Justice.  Defendant's  attorney  seems  to  have  omit- 
ted a  material  part  of  his  case ;  he  should  show  by  affidavit 
that  the  taxation  was  opposed,  and  the  items  objected  to  were 
taxed  under  objection  by  the  taxing  officer. 

Denied  with  costs,  without  prejudice. 


NEW-YORK  PRACTICE  REPORTS.  195 

The  People  agt  Judges  of  Court  of  Common  Pleas  of  Niagara  County. 


JOSEPH  A.  WESTBROOK  and  wife  agt.  ISAAC  A.  MERRITT. 

An  affidavit  for  a  motion  to  change  the  venue,  must  state  the  town,  village  or 
particular  place  of  residence  of  the  witnesses,  in  addition  to  the  county.  Stat- 
ing the  county  only  is  not  sufficient. 

June  Term,  1845. 

MOTION  by  defendant  to  change  the  venue. 

This  was  a  motion  to  change  the  venue  from  the  county  of 
Ulster  to  the  county  of  Delaware,  on  the  usual  printed 
form  of  affidavit.     The  defendant  stated  "  A.  B.,  *&c.,     [*196] 
(naming  his  witnesses,)  of  the  county  of  Delaware,  are 
and  each  and  every  one  of  them  is  a  material  witness,  &c." 

A.  TABER,  defendants  counsel. 

PARKER  &  PALMER,  defendant's  attorneys. 

J.  EDWARDS,  plaintiffs'  counsel 

M.  SCHOONMAKER,  plaintiffs1  attorney. 

The  point  taken  in  opposition  to  this  motion  was,  that  the 
affidavit  was  defective,  in  not  stating  the  town,  village  or  partic- 
ular place  of  residence  of  the  witnesses,  in  addition  to  "the 

county, 
i-"'*     •„'••* 

JEWETT,  Justice.  Held  the  objection  a  good  one,  and  de- 
nied the  motion  with  costs,  without  prejudice. 


THE  PEOPLE  ex.  rel  WILLIAM  E.  COOK  and  JOHN  STAHL,  JR., 
agt.  THE  JUDGES  OF  THE  COURT  OF  COMMON  PLEAS  OF 
NIAGARA  COUNTY. 

A  peremptory  mandamus  will  be  allowed  to  compel  a  court  of  common  pleas  to 
approve  a  new  appeal  bond,  where  the  bond  returned  by  the  justice  is  not  ap- 
proved by  him,  or  is  approved  by  an  officer  who  is  not  authorized,  under  the 
law  "  of  appeals  to  the  court  of  common  pleas." 

June  Term,  1845. 

A  MOTION  for  a  peremptory  mandamus  to  issue,  on  a  return 
to  an  alternative  mandamus. 


196  NEW-YORK  PRACTICE  REPORTS. 

The  People  agt.  Judges  of  Court  of  Common  Pleas  of  Niagara  County. 

This  was  an  appeal  cause  from  a  justice's  court,  to  the 
Niagara  common  pleas;  wherein  one  Edwin  Pichard  was 
appellee,  and  the  relators,  William  E.  Cook  and  John  Stahl, 
Jr.,  appellants.  On  the  3d  day  of  January,  1845,  an  affidavit 
with  allowance  of  an  appeal  thereon,  together  with  a  bond  ex- 
ecuted  by  the  appellants  and  one  William  Wood,  as  surety, 
was  served  on  the  justice  of  the  peace  before  whom  the  judg- 
ment was  rendered,  and  the  fees  paid.  The  justice  refused  to 
approve  the  bond,  on  the  ground  that  he  was  unacquainted 
with  the  surety.  The  bond  was  then  taken  to  the  officer 
allowing  the  appeal,  (a  supreme  court  commissioner,)  and  ap- 
proved by  him,  and  returned  to  the  justice  the  same  day.  The 
justice  made  and  filed  his  return  25th  January,  1845,  never 
having  approved  of  the  bond,  but  filed  it  with  the  approval 
only  of  the  supreme  court  commissioner  indorsed  thereon. 
At  the  February  term  of  the  court  of  common  pleas  of  Niagara 
county,  Pichard,  the  appellee,  moved  to  quash  the  appeal; 
which  motion  was  granted  with  costs  ;  on  the  ground  that  the 
appellants  did  not  at  the  time  they  served  upon  the  justice 
the  affidavit  and  allowance  of  appeal,  or  at  any  other  time, 
serve  upon  or  deliver  to  the  said  justice  a  bond  with  sureties, 
the  sufficiency  of  which  was  certified  or  approved  at  any  time, 
or  in  any  manner  by  the  justice  or  by  any  other  officer 
authorized  to  certify  or  approve  of  the  sufficiency  of  sureties 
in  cases  "  of  appeals  to  the  court  of  common  pleas." 

[*197]  *S.  P.  NASH,  relators1  counsel 

HIRAM  C.  CLARK,  relators1  attorney. 

J.  A.  COLLIER,  yules'  counsel. 

C.  E.  PARKER,  attorney  for  judges. 
/  .  • 

On  the  granting  of  the  motion  to  quash  the  appeal,  by  the 
common  pleas,  the  appellants  moved  the  court  to  approve  of 
the  sureties  to  the  bond  so  delivered  and  filed  by  the  justice, 
which  the  court  refused  to  do,  on  the  ground  that  the  statute 
had  not  conferred  jurisdiction  upon  them.  The  appellants 
then  asked  leave  and  offered  to  file  a  new  bond  with  sureties 


NEW-YORK  PRACTICE  REPORTS. 
Gale  agt.  Hoysradt. 

to  be  approved  by  the  court,  which  the  court  refused  to  allow, 
on  the  ground  that  there  was  not  any  informality  or  other  im- 
perfection in  the  bond  then  on  file,  and  nothing  therein  to  be 
amended  ;  the  bond  was  formal  and  perfect  upon  its  face,  but 
that  the  defect  in  the  proceedings  sought  to  be  supplied  by 
the  appellants,  was  the  omission  or  neglect  of  the  appellants 
to  give  the  sureties  required  by  law  in  appeal  cases,  which 
omission  or  neglect  the  court  of  common  pleas  had  no  right  or 
authority  and  could  not  amend  and  supply.  The  relator's 
counsel  cited  2  Revised  Statutes,  2d  ed.  189,  §  204,  and  11 
Wend.  174. 

JEWETT,  Justice.  The  return  of  the  justice  having  been 
made,  the  court  of  common  pleas  thereby  acquired  jurisdiction, 
and  were  by  the  authorities  above  cited,  bound  to  approve  a 
new  bond.  A  peremptory  mandamus  must  be  allowed. 

Eule  accordingly. 


JOSEPH  GALE  agt.  JOHN  HOYSRADT. 

Where  a  cause  is  put  over  the  circuit  by  plaintiff  for  one  day  on  payment  of  costs, 
and  is  not  again  reached  and  called  at  the  circuit,  the  defendant  cannot  get  th'e 
costs  of  the  circuit  even  if  younger  issues  were  tried  and  the  costs  of  the  day  not 
paid  by  plaintiff,  for  the  reason  that  defendant  had  not  procured  them  to  be 
taxed.  He  will  be  allowed  the  costs  of  the  day  only. 

June  Term,  1845. 

MOTION  by  defendant  that  plaintiff  pay  defendant's  costs  of 
circuit. 

This  was  an  action  of  replevin,  noticed  for  trial  at  the  last 
March  Columbia  circuit.  The  cause  was  by  agreement  be- 
tween the  plaintiff's  attorney  and  defendant's  counsel,  put  over 
for  the  first  day  of  the  circuit,  on  an  informal  call  of  the  calen- 
dar, to  the  next  morning.  The  plaintiff  thereupon  discharged 
his  witnesses  until  the  second  day  of  the  circuit,  at  the  open- 
ing of  the  court.  The  circuit  judge  called  the  calendar  through 


19  7  NEW-YORK  PRACTICE  REPORTS. 


Gale  agt.  Hoysradt. 


and  tried  two  or  three  short  causes ;  and  then  gave  notice  that 
he  should  commence  a  peremptory  call  of  the  calendar.  When 
this  cause  was  called  the  second  time,  plaintiff's  counsel  stated 
to  the  court  the  arrangement  that  had  been  made  to 
[*198]  put  the  cause  over  until  the  next  morning ;  *in  con- 
sequence of  which  plaintiff's  witnesses  had  gone,  and 
he  was  not  ready  for  trial.  The  defendant's  attorney  insisted 
that  the  trial  should  then  proceed.  Plaintiff  then  prepared  an 
affidavit  and  made  a  formal  application  to  put  the  cause  over 
until  the  next  morning,  which  was  granted  on  payment  of 
costs  of  the  day.  Both  parties  were  ready  for  trial  after  the 
first  day  ;  but  the  cause  was  not  again  called,  and  on  Thurs- 
day the  circuit  judge  announced  that  he  should  not  try  any 
more  civil  causes. 

E.  "W.  PECKHAM,  defendants  counsel. 
Gr.  "W.  BULKLEY,  defendant 's  attorney. 
M.  T.  REYNOLDS,  plaintiff's  counsel. 
J.  H.  REYNOLDS,  plaintiff's  attorney. 

The  defendant  stated  that  immediately  after  the  decision  was 
made,  allowing  the  cause  to  go  over  until  the  second  day  of 
the  circuit  on  payment  of  costs,  his  attorney  made  an  affidavit 
of  the  attendance  of  his  witnesses  and  presented  it  to  plaintiff's 
counsel,  who  read  it  and  made  no  objection  to  it,  and  was 
then  told  by  defendant's  attorney,  if  he  would  pay  the  amount 
of  witnesses'  fees,  $6.50,  it  would  be  satisfactory;  plaintiff's 
counsel  said  he  would  see  plaintiff  and  get  the  money  and  pay 
them  ;  defendant  also  stated  that  the  witnesses'  fees  had  never 
been  paid.  Also,  that  younger  issues  were  tried  in  their  regu- 
lar order  on  the  calendar.  Plaintiff  stated  that  there  was  no 
litigated  cause  tried  at  said  circuit,  except  those  having  a  pref- 
erence on  the  calendar  to  this  cause.  And  after  the  first  day 
there  was  no  opportunity  to  try  this  cause.  On  Thursday 
after  the  civil  calendar  had  been  disposed  of,  plaintiff's  attor- 
ney offered  to  pay  defendant's  attorney  the  costs  of  the  day  on 
their  being  regularly  taxed.  Defendant's  attorney  refused  to 
receive  them,  and  claimed  the  costs  of  the  circuit. 


NEW-YORK  PRACTICE  REPORTS.  198 

Finch  agt.  Graves. 

JEWETT,  Justice.  The  costs  of  the  circuit  cannot  be  al- 
lowed ;  it  seems  the  cause  was  put  over  for  one  day  on  pay- 
ment of  costs,  and  after  that,  was  not  again  reached  ;  plaintiff 
was  ready  to  try  at  any  time  after  the  first  day,  and  offered  to 
pay  the  costs  of  the  day  on  their  being  regularly  taxed.  Plain- 
tiff must  pay  the  costs  of  the  day,  $6.50,  without  any  costs  of 
this  motion  to  either  party. 

Kule  accordingly. 


JONAS  FINCH  agt.  THOMAS  S.  GRAVES. 

An  execution  will  be  set  aside  with  costs  if  issued  within  thirty  days  after  judg. 
ment  is  perfected,  there  being  no  consent  by  defendant  that  it  may  issue. 

June  Term,  1845. 

MOTION  by  defendant  to  set  aside  an  execution  and  subse- 
quent proceedings. 

Judgment  was  perfected  against  defendant  29th 
April,  1845.  *An  execution  was  issued  thereon,  and  [*199] 
delivered  to  the  sheriff  on  the  3d  day  of  May,  follow- 
ing. The  sheriff 's  deputy  had  proceeded  and  levied  on  the 
property  of  defendant.  Defendant  denied  ever  having  given 
consent  that  execution  might  issue.  Plaintiff  stated  that  be- 
fore and  after  the  judgment  was  perfected  in  the  cause,  the  de- 
fendant had  incumbered  his  personal  property  by  mortgages, 
in  order  to  avoid  the  payment  of  the  judgment ;  and  his  real 
estate  being  incumbered  for  near  its  value,  there  was  no  pros- 
pect of  plaintiff's  realizing  anything  only  by  means  of  defend- 
ant's personal  property ;  that  after  the  execution  had  been 
issued,  and  about  the  middle  of  May,  plaintiff's  attorney  learn- 
ing that  the  property  on  which  he  had  ordered  the  sheriff  to 
levy  was  mortgaged,  he  directed  the  sheriff  to  return  the  exe- 
cution to  him,  which  was  done,  and  alleged  that  the  defendant 
had  not  been  put  to  any  inconvenience  by  reason  of  it.  De- 
fendant's attorney  offered  plaintiff's  attorney  on  the  24th  of 
May,  to  withdraw  the  motion  on  plaintiff's  paying  five  dol- 


199  NEW-YORK  PRACTICE  REPORTS. 

Campbell  agt.  Spencer. 

lars  for  preparing  the  papers.  Plaintiff's  attorney  declined 
doing  so,  but  offered  to  indorse  five  dollars  on  the  judgment, 
provided  the  defendant  had  been  put  to  any  expense  or  incon- 
venience, in  consequence  of  the  issuing  of  the  execution,  which 
defendant's  attorney  declined  to  do. 

E.  W.  PECKHAM,  defendant 's  counsel. 
CHAS.  C.  NOBLE,  defendant's  attorney. 
J.  A.  COLLIER,  plaintiff 's  counsel. 
WM.  B.  HAWES,  plaintiff'1  s  attorney. 

JEWETT,  Justice.  The  execution  was  issued  too  soon, 
and  I  see  nothing  in  the  case  to  take  it  out  of  the  rule.  The 
statute  directs  the  time  of  issuing  executions,  and  in  this  case 
it  was  issued  sooner  than  the  statute  authorizes.  Motion  must 
be  granted  with  costs. 
1  Rule  accordingly. 


DRYDEN  H.  CAMPBELL  agt.  ELIZA  SPENCER. 

It  is  bad  service  to  unlock  a  door  of  an  office  and  leave  the  papers  therein,  no 
person  at  the  time  being  in  the  office ;  under  such,  circumstances,  service 
should  be  made  in  some  other  way. 

June  Term,  1845. 

MOTION  by  defendant  to  set  aside  report  of  referees. 

The  notice  that  this  cause  would  be  brought  to  a  hearing 
before  the  referees,  was  served  on  defendant's  attorney  by 
plaintiff's  attorney,  on  the  14th  day  of  March,  1845,  and  stated 
in  the  affidavit  of  plaintiff's  attorney,  to  be  as  follows  :  "By 
leaving  such  notice  in  the  office  of  said  Martin,  in  a  conspi- 
cuous place  therein,  no  person  being  in  said  Martin's  office  at 
that  time,  to  wit,  by  laying  such  notice  upon  a  book  lying 
upon  the  table  of  said  Robert  H.  Martin,  defendant's 
[*200]  attorney,  being  the  same  table  at  which  said  *Martin 
usually  sits ;  that  at  the  tune  of  such  service  he  found 


PRACTICE  REPORTS.  200 


Campbell  agt.  Spencer. 


the  key  of  the  said  Martin's  office  in  the  door  thereof."  De- 
fendant's attorney  stated  he  never  saw  or  knew  of,  or  in  any 
manner  received  any  notice  of  hearing  in  this  cause,  and  knew 
nothing  of  it  until  the  morning  of  the  28th  March,  the  day  the 
cause  was  to  be  tried  before  the  referees,  when  he  accidentally 
found  the  cause  was  to  be  tried.  It  appeared  by  defendant's 
affidavits  that  Robert  H.  Martin,  Esq.,  defendant's  attorney, 
was  taken  suddenly  sick  on  the  12th  March,  aforesaid,  and  so 
continued  for  a  number  of  weeks  ;  that  Lewis  A.  Cole,  Esq., 
kept  an  office  of  his  own  in  the  same  office  and  room  with  said 
Martin,  and  was  requested  by  Martin  to  watch  for  any  papers 
left  for  or  served  upon  him,  Martin,  and  if  any,  to  let  him 
know  immediately.  On  the  12th  and  13th  March,  Cole  was 
in  the  office,  and  when  he  left,  he  locked  the  office  and  hung 
the  key  under  a  sign.  Cole  swore  that  on  Thursday,  the  13th 
March,  he  left  the  office  in  the  afternoon  and  locked  the  door, 
and  hung  the  key  in  the  usual  place,  under  the  sign,  that  he 
was  taken  unwell  that  day,  and  did  not  go  to  the  office  again 
until  Wednesday,  the  19th  March,  when  he  went  and  found 
the  key  hanging  where  he  left  it,  under  the  sign,  and  the  office 
locked.  Martin  was  at  that  time  sick,  and  unable  to  leave  his 
house. 

E.  "W.  PECKHAM,  defendants  counsel. 
E.  H.  MARTIN,  defendants  attorney. 
M.  T.  REYNOLDS,  plaintiff's  counsel. 
L.  A.  CARD,  plaintiffs  attorney. 

JEWETT,  Justice.  Where  the  door  of  an  office  is  found 
locked,  and  it  is  unlocked,  and  service  made  by  leaving  the 
paper  in  the  office,  no  person  being  therein,  it  is  bad  service  ; 
no  service  made  in  that  way  can  be  considered  good  ;  it  should 
be  made,  under  such  circumstances,  in  some  other  manner. 
Motion  must  be  granted  with  costs. 

Rule  accordingly. 


200  NEW-YORK  PRACTICE  REPORTS. 

In  the  matter  of  the  Justices  of  the  Superior  Court, 


IN  THE  MATTER  OF  THE  APPLICATION  FOR  A  WRIT  OF  MAN- 
DAMUS TO  THE  JUSTICES  OF  THE  SUPERIOR  COURT  OF 
THE  CITY  OF  NEW-YORK. 

Executors  must  sue  in  their  representative  character,  to  exonerate  them  from 
the  payment  of  costs,  where  defendant  obtains  judgment  for  costs.  Merely 
describing  themselves  as  executors  at  the  commencement,  and  the  declaration 
throughout  showing  that  the  cause  of  action  accrued  to  themselves  and  not  to 
the  testator,  is  not  sufficient. 

June  Term,  1845. 

MOTION  ex  parte  for  alternative  mandamus. 

This  was  a  suit  commenced  in  the  superior  court  of  the  city 
of  New- York,  by  Edward  Ferris  and  Adeline  Pool,  executor 
and  executrix  of  the  last  will  and  testament  of  John  Pool, 
deceased,  plaintiffs,  against  Kobert  Hogan,  defendant.  The 
declaration  was  in  assumpsit  in  the  ordinary  form  of 
[*201]  money  counts  at  ^length,  alleging  the  defendant  to 
be  indebted  to  the  plaintiffs  in  the  sum  of  five  hun- 
dred dollars,  &c.  The  plaintiffs  were  not  described  as  execu- 
tor and  executrix  only  at  the  commencement  of  the  declara- 
tion, and  were  there  described  as  above  mentioned.  The 
defendant  pleaded  non-assumpsit,  with  notice  of  set-off.  The 
cause  was  tried  October  25th,  1844,  and  a  verdict  rendered 
for  plaintiffs  for  $21.25.  On  the  19th  December  following, 
defendant's  attorneys  made  out  the  defendant's  costs  and  had 
them  taxed,  and  requested  plaintiffs'  attorney  to  insert  a  sug- 
gestion in  the  plaintiffs'  record  of  the  amount  of  costs  due  de- 
fendant, which  plaintiffs'  attorney  declined  doing.  On  the 
27th  May,  1845,  defendant  procured  an  order  to  show  cause, 
from  one  of  the  judges  of  said  court,  why  plaintiff  should  not 
amend  his  judgment  record  which  was  then  entered  in  the 
cause,  by  inserting  the  amount  of  defendant's  costs,  which  were 
taxed  at  $69.37,  or  that  the  defendant  be  permitted  to  enter 
up  his  judgment  for  the  costs,  which  motion  was  denied  with 
seven  dollars  costs  by  the  judge  of  said  court  who  heard  the 


NEW-YORK  PRACTICE  REPORTS.  201 

McKnight  agt.  Baker. 

application.     Defendant's  attorneys  showed  that  on  the  trial 
the  plaintiffs'  claim  was  not  reduced  by  set-off. 

E.  W.  PECKHAM,  relator's  counsel. 

J.  "W.  &  J.  E.  WHITE,  relator's  attorneys. 

It  was  insisted  by  relator's  counsel  that  the  cause  of  action 
as  stated  in  plaintiffs'  declaration,  showed  that  it  accrued  to 
themselves  and  not  to  the  testator ;  their  stating  themselves  to 
be  executors  was  not  sufficient  to  exonerate  them  from  the 
payment  of  costs;  that  to  exonerate  from  costs  they  must 
necessarily  sue  in  their  representative  character. 

JEWETT,  Justice.  Took  the  same  view  of  the  subject,  and 
allowed  an  alternative  mandamus  to  require  the  superior  court 
to  vacate  their  order  denying  defendant's  motion,  and  to  com- 
pel plaintiff  to  make  up  and  file  a  record  of  judgment,  insert- 
ing therein  the  amount  of  defendant's  costs,  &c. 


JOHN  MCKNIGHT  agt.  ISAAC  Y.  BAKER. 

A  defendant  cannot  appear  and  plead  in  a  cause  as  a  matter  of  course,  never 
having  been  served  with  process.  A  motion  to  set  aside  an  inquest  against  a 
defendant  on  the  ground  that  a  co-defendant  was  declared  against  in  the  de- 
claration filed,  and  that  both  defendants  had  appeared  and  pleaded,  although 
but  one  was  served  with  process,  and  that  the  plaintiff  could  not  sever  in  such 
a  case  and  take  an  inquest  against  the  defendant  who  had  been  served,  will 
be  denied  with  costs,  for  the  reason  that  the  defendant  who  has  not  been 
served  with  process  has  no  right  to  appear  and  plead. 

June  Term,  1845. 

MOTION  by  defendant   to   set  aside  inquest  for  irregu- 
larity. 

This  suit  *was  commenced  to  recover  the  amount     [*202] 
of  a  promissory  note  made  by  defendant  Baker,  and 
indorsed  by  one  Peter  Comstock.     The  declaration  filed  was 
against  Baker  and  Comstock.     A  copy  of  the  declaration  was 
served  on  the  defendant  Baker,  26th  November  last ;  no  de- 

YOL.  L  19 


202  NEW-YORK  PRACTICE  REPORTS. 

Robbins  agt.  Lewis. 

claration  was  ever  served  on  Peter  Comstock.  On  the  3d  of 
December  last,  defendant  Baker  appeared  and  pleaded  ;  on  the 
same  day  plaintiff's  attorneys  served  defendant's  attorneys 
with  notice  of  trial  for  January  circuit ;  the  cause  was  not 
reached  at  the  January  circuit,  and  on  the  15th  January  Eb- 
enezer  Clark,  Esq.,  one  of  defendant's  attorneys,  undertook  to 
appear  and  plead  for  Peter  Comstock,  without  any  process 
having  been  served  upon  him.  Plaintiff's  attorneys  on  the 
16th  January  served  on  said  Clark  a  notice,  stating  that  as  no 
suit  had  been  commenced  against  Peter  Comstock  by  them  in 
favor  of  John  McKnight,  the  plea  and  notice  served  by  said 
Clark  for  Comstock  would  be  entirely  disregarded.  In  March 
following,  plaintiff's  attorneys  served  another  notice  of  trial 
in  this  cause  on  defendant's  attorneys  for  the  April  circuit. 
At  the  April  circuit  the  cause  was  reached  in  its  regular  order 
on  the  calendar,  and  an  inquest  and  verdict  taken  therein 
upon  which  a  judgment  was  subsequently  entered  up.  De- 
fendants moved  on  the  ground  that  the  plaintiff  could  not 
sever  and  take  an  inquest  against  one  defendant,  where  both 
had  appeared  and  pleaded  in  the  cause. 

E.  CLARK,  defendant's  counsel. 
CLARK  &  PATTISON,  defendants  attorneys. 
C.  STEVENS,  plaintiff's  counsel. 
CAGGER  &  STEVENS,  plaintiff's  attorneys. 

JEWETT,  Justice.  Denied  the  motion  on  the  ground  that 
Peter  Comstock  had  no  right  to  appear  and  plead  ;  he  never 
having  been  served  with  process.  Plaintiff  had  a  perfect  right 
to  disregard  the  appearance  and  plea,  and  go  on  and  take  his 
inquest  against  Baker. 

Motion  denied  with  costs. 


HENRY  C.  BOBBINS  agt.  GRAUDUS  LEWIS. 

A  feigned  iseue  is  the  appropriate  remedy,  and  will  be  ordered,  to  try  the  con- 
sideration of  a  judgment  given  on  bond  and  warrant  of  attorney,  and  sought 


NEW-YORK  PRACTICE  REPORTS.  202 

Robbins  agt.  Lewis. 

to  be  set  aside  on  the  ground  of  usury  or  duress,  where  the  facts  in  the  pa- 
pers on  the  motion  are  conflicting. 


June  T&rm,  1845. 

MOTION  by  defendant  to  set  aside  the  judgment  perfected 
in  this  cause,  and  the  execution  issued  thereon  for  usury  and 
duress. 

Graudus  Lewis,  the  defendant,  stated  that  on  or  about  the 
10th  January  last  he  confessed  a  judgment  in  this  court  on 
bond  and  warrant  of  attorney,  to  plaintiff  for  $400  debt ;  the 
penalty  in  the  bond  was  conditioned  for  the  payment 
of  *$200.  The  judgment  was  given  on  three  notes  [*203] 
made  by  defendant  to  plaintiff,  one  for  forty  dollars 
and  interest,  dated  on  or  about  1st  December,  1844,  and  due 
on  or  about  the  15th  February,  1845.  One  other  note  for 
forty  dollars  and  interest,  due  on  or  about  the  15th  June, 
1845,  and  one  other  note  for  fifty  dollars  and  interest,  due  in 
about  two  months  from  the  date  thereof,  both  of  which  last- 
mentioned  notes  were  dated  on  or  about  the  same  day  that  the 
first  was  dated.  At  the  time  of  giving  the  judgment,  defend- 
ant gave  a  consent  that  execution  might  issue  thereon  imme- 
diately, with  the  understanding  between  the  defendant  and 
the  plaintiff  that  a  levy  might  be  made  upon  certain  property 
then  and  there  turned  out  by  defendant  in  writing  to  the 
sheriff  of  Steuben.  And  that  levy  should  remain  without 
further  proceedings  until  the  expiration  of  one  year  from  the 
time  of  giving  the  judgment.  And  that  if  at  the  expiration 
of  one  year,  the  defendant  should  have  paid  to  the  plaintiff  the 
sum  of  one  hundred  dollars,  then  the  levy  should  remain  with- 
out further  proceedings  until  the  expiration  of  two  years  from 
the  time  of  giving  the  judgment,  when  the  defendant  agreed 
to  pay  the  balance  of  one  hundred  dollars  and  satisfy  the  exe- 
cution. The  two  forty  dollar  notes  were  given  for  a  buggy 
wagon  purchased  of  plaintiff;  the  fifty  dollar  note  was  for  a 
set  of  harness  purchased  of  plaintiff  at  forty-five  dollars,  and 
the  balance  of  five  dollars  was  for  tavern  bill,  one  dollar  and 
fifty  cents  of  which  was  for  liquor  had  at  the  bar  of  plaintiff. 


203  NEW-YORK  PRACTICE  REPORTS. 

Robbing  agt.  Lewis. 

On  the  6th  of  January  last  defendant  was  arrested  upon  a  war- 
rant issued  by  a  justice  of  the  peace  of  Penn  Yan,  Yates  coun- 
ty, upon  complaint  of  the  plaintiff  in  this  cause,  for  getting 
goods  under  false  pretences.  Defendant  was  conveyed  to 
Penn  Yan,  and  the  plaintiff  agreed  not  to  appear  before  the 
justice  against  defendant  if  he  would  confess  a  judgment  of  two 
hundred  dollars  ;  and  turn  out  property  to  be  levied  upon  by 
the  sheriff  of  Steuben.  Defendant  asserted  that  while  under 
such  arrest,  without  counsel  and  entirely  ignorant  of  his  right?, 
he  confessed  the  judgment  before  stated — consented  to  the  im- 
mediate issue  of  an  execution  and  turned  out  the  property  as 
stated.  Defendant  then  appeared  before  the  justice  who  had 
issued  the  warrant,  and  no  complainant  appearing  he  was  dis- 
charged. Defendant  alleged  he  did  not  owe  the  plaintiff  only 
the  amount  of  the  three  notes,  amounting  to  one  hundred  and 
thirty  dollars  and  interest ;  that  the  plaintiff  had  ordered  the 
sheriff  of  Steuben  to  sell  the  property  which  was  turned  out 
and  levied  upon,  immediately,  and  satisfy  the  execution. 
William  H.  Lewis  and  Moses  H.  Lyon,  in  separate  affidavits, 
stated,  that  plaintiff,  on  or  about  the  10th  January  last,  in- 
formed them  he  had  made  complaint  before  a  justice 
[*204]  against  the  defendant,  and  *had  caused  him  to  be  ar- 
rested ;  that  for  the  purpose  of  settling  the  matter  the 
defendant  had  confessed  a  judgment  to  plaintiff  for  two  hun- 
dred dollars ;  that  defendant  owed  to  plaintiff  only  about  one 
hundred  and  thirty  dollars  ;  that  plaintiff  had  agreed  not  to 
appear  against  defendant  upon  the  charge  of  obtaining  goods 
under  false  pretences,  provided  the  defendant  should  confess 
the  judgment  before  mentioned ;  and  that  he  had  not  appeared 
before  the  justice,  and  the  defendant  had  consequently  been 
discharged.  Plaintiff  further  informed  them  that  he  had  agreed 
to  wait  on  defendant  for  one  hundred  dollars  of  the  judgment 
one  year,  and  for  the  balance  two  years,  if  defendant  would  by 
writing  turn  out  sufficient  property  to  the  sheriff  to  be  levied 
upon  to  secure  the  judgment  of  two  hundred  dollars.  And 
plaintiff  also  informed  them  that  defendant  had  agreed  to  the 
immediate  issuing  of  the  execution  upon  the  judgment,  and 


NEW-YORK  PRACTICE  REPORTS.  204 

Robbins  agt.  Lewis. 

had  turned  out  sufficient  property  to  secure   the  judgment. 
Henry  0.  Bobbins,  the  plaintiff,  stated  that  the  defendant  was 
justly  indebted  to  him  in  the  sum  of  two  hundred  and  five 
dollars,  as  follows :  a  buggy  wagon,  eighty  dollars,  new  two- 
horse  harness,  forty-five  dollars,  an  account  for  transient  board 
and  lodging  and  horse  keeping  at  the  tavern  of  plaintiff,  twenty 
dollars,  and  an  account  for  the  use  and  expenses  of  plaintiff's 
double  team,  and  a  man  to  drive  the  same,  for  twelve  days, 
at  five  dollars  per  day.     On  the  10th  January  last,  plaintiff 
and  defendant  liquidated  and  agreed  upon  the  sun  at  two 
hundred  dollars  as  the  sum  justly  due  plaintiff,  and  fot  which 
defendant   confessed   judgment  as  before    stated.      Plaintiff 
stated  he  never  had  any  note  for  fifty  dollars  againac  defend- 
ant, but  had  two  notes  of  forty  dollars  each,  as  'tefore  men- 
tioned.    Plaintiff  denied  that  he  agreed  to  wait  irpon  defend- 
ant for  any  particular  time,  without  further  proceedings  after 
the  issuing  of  the  execution,  but  the  defendant  promised  plain- 
tiff that  as  soon  as  the  levy  should  be  made,  \o  would  get 
his  brother,  William  H.  Lewis,  to  purchase  thu  judgment  of 
plaintiff  or  in  some  other  manner  arrange  the  matter  so  that 
plaintiff  could  obtain  the  amount  of  the  judgment  in  a  few 
days.     Plaintiff  waited  several  weeks,  and  hearing  nothing  of 
defendant,  he  directed  the  sheriff  to  proceed  with  the  execu- 
tion.    Plaintiff  stated  that  at  the  time  of  the  confession  of  said 
judgment,  the  defendant  was  under  no  arrest  or  duress,  nor 
did  plaintiff  then  agree  not  to  prosecute  defendant  for  false 
pretences  or  any  other  crime,  nor  was  it  upon  any  such  con- 
dition that  the  judgment  was  confessed.     Plaintiff  also  stated 
that  soon  after  the  purchase  by  defendant  of  said  wagon  and 
harness,  defendant  absconded,  or  went  away  from  his  home 
with  the  wagon  and  harness,  and  sold  them  for  less  than 
one-third    their  value,   as    plaintiff  was    informed, 
*at  which  time  the  family  and   friends  of  the   de-     [*205] 
fendant  reported  defendant  as  worthless,  and  that 
he  had  no  property,  and  did  not  own  the  farm  where  he  re- 
sided ;   which  was  contrary  to  the  representations  made  by 
defendant  to  plaintiff  at  the  time  of  the  purchase  of  said  wagon 


205  NEW-YORK  PRACTICE  REPORTS. 

Robbins  agt.  Lewis. 

and  harness,  and  upon  which  representations  plaintiff  was  in- 
duced to  sell  the  same  on  a  short  credit  to  defendant.  Plain- 
tiff believing  the  reports,  caused  the  defendant  to  be  arrested 
as  before  stated ;  after  which  plaintiff  became  convinced  that 
no  prosecution  for  any  offence  could  be  sustained,  and  that 
defendant's  family  and  friends  had  circulated  such  reports 
merely  to  prevent  defendant  from  obtaining  credit ;  plaintiff 
then  abandoned  the  complaint  and  so  informed  defendant  be- 
fore the  confession  of  judgment.  Plaintiff  denied  that  he  ever 
gave  William  H.  Lewis  and  Moses  H.  Lyon  the  information 
which  they  stated  in  their  affidavits  as  communicated  to  them 
respectively  by  plaintiff,  or  any  words  to  the  effect  thereof. 
Plaintiff  also  stated  that  there  was  no  part  of  the  consideration 
of  the  judgment,  for  liquor  sold  to  defendant  at  plaintiff's  bar. 
Cornelius  B.  Ackerman,  who  was  a  bar  keeper  of  plaintiff, 
stated  he  knew  all  about  plaintiff's  accounts  and  business,  that 
there  was  no  charge  or  claim  for  liquor  sold  to  defendant  in 
the  account  due  plaintiff  from  defendant.  Ackerman  also 
corroborated  the  statement  of  plaintiff  as  to  the  amount  of  the 
account,  the  items  composing  the  consideration  and  the  amount 
liquidated  and  settled  upon  at  the  time  of  giving  the  judg- 
ment, to  wit :  two  hundred  dollars ;  the  whole  claim  was  two 
hundred  and  five  dollars.  Samuel  Chissam,  the  constable  who 
arrested  defendant,  stated  that  he  arrested  defendant  on  the 
6th  of  January,  and  he  was  discharged  on  the  7th  January, 
from  the  custody  of  the  constable,  and  was  not  afterwards  in 
his  custody. 

S.  H.  HAMMOND,  defendant's  counsel. 

E.  B.  VAN  VALKENBURGH,  defendants  attorney. 

A.  TABER,  plaintiffs  counsel. 

J.  S.  GLOVER,  plaintiffs  attorney. 

JEWETT,  Justice.  Order  a  feigned  issue  to  try  the  consid- 
eration of  the  judgment  entered  on  the  bond  and  warrant  of 
attorney,  and  drew  up  the  order  for  the  parties,  as  follows  : 
"  It  is  ordered  that  a  feigned  issue  be  granted  to  try  the  va- 
lidity of  the  said  judgment,  and  that  all  further  proceedings, 


NEW-YORK  PRACTICE  REPORTS.  205 

Bosher  agt.  Harris. 

on  said  judgment  or  upon  any  execution  which  may  have 
been  issued  thereon  be  stayed  until  the  further  order  of  this 
court ;  that  the  attorney  of  the  said  defendant  prepare  the 
record  for  the  trial  of  said  issue,  laying  the  venue  in  the  county 
of  Yates,  and  furnish  a  copy  thereof  to  the  attorney  for  the 
plaintiff,  and  the  said  defendant  to  be  the  plaintiff  therein ;  and 
if  the  said  attorney  for  the  plaintiff  in  this  suit  shall  object  to 
the  form  thereof,  he  shall  signify  it  by  a  notice  in 
writing  to  the  attorney  *for  the  defendant  in  this  suit  [*206] 
who  gave  notice  of  this  motion  in  behalf  of  said  defend' 
ant,  in  ten  days  after  said  copy  shall  be  so  furnished  ;  and  in 
that  event  the  same  shall  be  settled  by  a  judge  of  this  court 
on  notice  given  to  the  attorney  for  the  plaintiff  in  this  suit 
within  ten  days  thereafter.  It  is  further  ordered  that  said 
issue  may  be  tried  at  the  next  circuit  court,  to  be  held  in  the 
county  of  Yates,  after  said  issue  shall  be  made  and  settled, 
and  that  on  such  trial  the  said  Eobbins  be  in  the  first  instance 
required  to  prove  the  several  items  of  his  demand  which  made 
up  the  sum  of  the  condition  of  the  bond  upon  which  the  judg- 
ment was  confessed,  with  the  particular  time  and  times  when 
and  also  how  such  indebtedness  accrued,  and  shall  also  be  re- 
quired to  produce  on  such  trial  the  said  bond  upon  which  said 
judgment  was  so  confessed.  The  costs  to  abide  the  event  of 
of  this  suit." 


JAMES  BOSHER  agt.  WILLIAM  M.  HARRIS  and  JOHN  H. 

BOSHER. 

Facts  and  circumstances  for  relief  on  an  application  to  set  aside  an  inquest ; 
which  -was  granted  upon  terms. 

June  Term,  1845. 

MOTION  by  defendant  Harris  to  set  aside  inquest. 

This  cause  was  commenced  March,  1842.  Issue  joined 
therein  on  the  10th  May,  1842.  On  the  10th  December  fol- 
lowing, a  stipulation  was  entered  into  by  both  parties,  for  a 


206  NEW-YORK  PRACTICE  REPORTS. 

Bosher  agt.  Harrss. 

commission  to  examine  such  witnesses  as  either  party  might 
choose  to  designate,  residing  at  Eichmond,  Virginia,  or  the 
vicinity.  Such  commission  was  sent  to  be  executed  on  the 
part  of  the  plaintiff  only,  and  defendant  alleged  without  his 
knowledge,  although  he  had  witnesses  there  which  he  in- 
tended to  have  examined,  and  had  interrogatories  prepared 
for  the  purpose.  The  commission  was  returned  with  the  ex- 
amination of  two  of  plaintiff's  witnesses  only.  An  inquest 
was  taken  by  plaintiff  on  the  llth  of  April  last  before  Judge 
EDMONDS  of  the  first  circuit,  and  judgment  entered  up  for 
$1,322.10,  on  the  following  day  ;  which  was  done  in  the  ab- 
sence of  both  of  defendant's  attorneys  on  public  business ; 
the  management  of  the  cause  during  such  absence  was  in- 
trusted to  John  Vanderbilt,  Esq.,  who  stated  that  the  inquest 
was  taken  by  surprise  upon  him,  from  the  fact  that  notice  had 
been  published  in  the  public  papers  that  Judge  WILLARD,  of 
the  fourth  circuit  would,  in  consequence  of  Judge  EDMONDS 
being  engaged  in  the  oyer  and  terminer  in  the  case  of  Mary 
Bodine,  hold  the  circuit  for  the  trial  of  the  causes  on  the  civil 
calendar,  upon  which  public  notice  he  relied ;  the  inquest  was 

taken  while  the  jury  in  the  case  of  Mary  Bodine  were 
[*207J  out  consulting  "*  about  their  verdict ;  he  had  no  notice 

of  any  intention  of  Judge  EDMONDS  taking  up  the 
civil  calendar,  or  of  the  inquest  being  taken  until  after  it  was 
done,  to  wit :  on  the  12th  April  last ;  that  he  should  have  de- 
fended the  cause  had  he  known  of  the  intention  of  Judge  ED- 
MONDS to  take  up  the  civil  calendar ;  he  was  led  into  the  belief 
by  the  public  notice  that  the  cause  would  not  be  tried  until 
Judge  WILLARD'S  arrival,  which  was  on  the  14th  April,  and  for 
that  reason  alone  the  cause  was  not  defended.  As  soon  as  he 
discovered  an  inquest  had  been  taken  he  requested  plaintiff 's 
attorney  to  consent  to  set  the  same  aside,  and  offered  to  pay 
the  costs  thereof,  and  to  allow  the  judgment  to  stand  as  secu- 
rity, which  request  plaintiff's  attorney  declined  to  accede  to, 
for  the  reason  that  he  had  written  to  his  client  the  fact  of  an 
inquest  having  been  taken.  Defendant'  Harris  swore  to 
merits  generally,  and  for  this  motion. 


NEW-YORK  PRACTICE  REPORTS.  20T 


In  the  matter  of  Faulkner. 


R.  W.  PECKHAM,  defendant's  counsel. 

LOTT  &  MURPHY,  defendant's  attorneys. 

J.  W.  HAMMERSLEY,  plaintiff's  counsel  and  attorney. 

JEWETT,  Justice.  Concluded  he  would  relieve  the  defendant 
on  terms,  and  ordered  the  inquest  to  be  set  aside  on  payment 
of  the  costs  of  the  circuit  and  all  subsequent  proceedings,  and 
seven  dollars  costs  of  opposing  motion.  Judgment  to  stand 
as  security,  and  defendant  to  accept  eight  days'  notice  of  trial. 


In  the  matter  of  THOMAS  FAULKNER,  an  absconding  or  con- 
cealed debtor. 

A  debt  against  an  absconding  or  concealed  debtor  as  executor  wDl  have  preference 
over  other  debts  due  from  him  to  other  creditors,  and  must  be  paid  by  the 
trustees  first.  An  executor  who  receives  moneys  of  the  estate  of  a  testator 
before  he  has  qualified  as  such  executor,  is  bound  as  an  executor  for  such 
moneys  if  he  subsequently  qualify ;  his  authority  in  such  a  case  relates  back 
and  legalizes  the  payments  made  to  him. 

April  Special  Term,  1845. 

Petition  of  James  Finley  and  Thomas  Faulkner,  executors 
of  the  last  will  and  testament  of  Eobert  Elliott,  deceased,  of 
the  city  of  New-York,  and  William  D.  Green,  of  the  county 
of  Oneida,  in  behalf  of  themselves  and  the  other  creditors 
of  Thomas  Faulkner,  an  absconding  or  concealed  debtor ;  pre- 
sented to  this  court  for  direction  to  the  trustees  of  Thomas 
Faulkner  in  regard  to  paying  over  moneys  in  their  hands,  as 
such  trustees. 

On  the  12th  July,  1842,  Jonathan  Miller,  Frederick  A. 
Guion  and  Julius  Hitchcock  were  appointed  trustees  for  all 
the  creditors  of  Thomas  Faulkner,  an  absconding  or  concealed 
debtor.     The  trustees  entered  upon  their  duties  and 
became  possessed  of  about  eight  ^hundred  dollars  in     [*208] 
money,  and  the  right  to  a  promissory  note  of  about 
two  hundred  dollars.     The  trustees  stated  on  the  28th  Feb- 
ruary, 1845,  that  they  had  men  received  in  all  of  the  estate  of 
said  debtor  nine  hundred  and  fifty-three  dollars.     Thomas 


208  NEW-YORK  PRACTICE  REPORTS. 

In  the  matter  of  Faulkner. 

Faulkner,  the  debtor,  and  James  Finley  were  appointed  ex- 
ecutors of  the  will  of  Bobert  Elliott.  Finley  proved  the  will 
and  obtained  letters  testamentary  before  Faulkner  had  quali- 
fied as  executor.  Faulkner  received  several  sums  of  money, 
amounting  in  the  whole  to  the  sum  of  two  hundred  and  thirty- 
six  dollars  and  fifty  cents,  belonging  to  the  estate  of  the  tes- 
tator. Faulkner  subsequently  qualified  as  executor.  At  a 
general  meeting  of  the  creditors  of  Faulkner  called  by  the 
trustees,  the  executors  of  Elliott  presented  a  claim  for  the 
moneys  so  received  by  Faulkner,  which  was  allowed  by  the 
trustees.  The  executors  claimed  a  preference  over  the  other 
creditors  of  Faulkner,  but  their  right  to  it  was  denied  by  the 
trustees.  And  the  executors  moved  that  the  trustees  allow 
their  claim  a  preference  to  other  creditors. 

R.  "W.  PECKHAM,  counsel  for  petitioners. 
S.  B.  H.  JUDAH,  attorney  for  petitioners. 
G.  R.  J.  BOWDOIN,  counsel  for  trustees. 
JAS.  SMITH,  attorney  for  trustees. 

BRONSON,  Chief  Justice.  The  statute  directs  that  the  trus- 
tees in  making  a  distribution  of  the  moneys  in  their  hands 
"  shall  first  pay  all  debts  that  may  be  owing  by  the  debtor  as 
guardian,  executor,  administrator  or  trustee."  (2  R.  S.  47, 
§  34.)  The  objection  urged  against  this  claim  is,  that  as  Faulk- 
ner had  not  been  qualified  he  was  not  executor  at  the  time 
the  money  was  received.  (2  R.  S.  71,  §§  15,  16 ;  Thomas  agt. 
Cameron,  16  Wend.  579 ;  In  tthe  matter  of  Stevenson,  3  Paige, 
420.)  But  the  answer  is,  that  when  Faulkner  qualified  as  ex- 
ecutor, his  authority  related  back,  and  legalized  the  payments 
which  had  previously  been  made  to  him.  (Priest  agt.  Watkinsi 
2  Hill,  225.)  He  afterwards  held  the  money,  and  it  was  a 
debt  against  him  as  executor.  The  claim  to  preference  must 
be  allowed. 


NEW-YORK  PRACTICE  REPORTS.  208 

Morrell  agt.  Gibson. 


FRANCIS  MORRELL  agt.  JAMES  GIBSON. 

Facts  and  circumstances  upon  which  a  defendant  will  be  let  in  to  defend  on 
terms,  where  a  verdict  has  been  taken  against  him.  Where  terms  are  im- 
posed, of  payment  of  costs  and  judgment  to  stand  as  security,  &c.,  no  costs  for 
entering  judgment  will  be  included,  where  judgment  has  not  already  been 
entered,  plaintiff  must  enter  the  judgment  at  his  own  expense  in  such  a  case. 

June  Term,  1845. 

MOTION  by  defendant  to  set  aside  the  verdict  taken  in  this 
cause,  and  allowing  defendant  to  come  in  and  defend. 

Edwin  C.  Litchfield,  defendant's  attorney,  stated 
this  was  an  action  for  assault  and  battery ;  *was  no-  [*209] 
ticed  for  trial,  and  on  the  calendar  at  the  Albany 
circuit  in  April,  1845.  It  was  on  the  day  calendar  for  the 
23d  April ;  on  the  adjournment  of  the  court  at  noon,  the 
court  was  engaged  in  the  trial  of  an  ejectment  suit ;  the  court 
adjourned  to  meet  at  three  o'clock,  P.  M. ;  after  the  adjourn- 
ment he  saw  the  plaintiff's  attorney  in  the  ejectment  suit  on 
the  trial,  and  inquired  of  him  how  long  the  trial  of  said  cause 
would  occupy,  and  was  informed  by  the  attorney,  three  or 
four  hours  longer.  Litchfield  thereupon  went  to  attend  upon 
another  legal  engagement  previously  made,  and  was  engaged 
therein  until  about  half-past  five  or  six  o'clock,  P.  M.,  and  on 
going  to  the  circuit,  he  found  this  cause  had  been  called  on 
for  trial,  and  concluded  ;  and  the  jury  were  then  out  and 
soon  returned  and  rendered  a  verdict  for  plaintiff  of  one  hun- 
dred dollars,  no  one  having  appeared  on  the  part  of*  the  de- 
fence. Before  the  adjournment  of  the  court  at  noon,  on  the 
2  Jd,  Litchfield  stated  he  inquired  of  George  W.  Peckham, 
Esq.,  plaintiff's  counsel,  whether  three  different  causes  in 
which  Peckham  was  engaged,  and  standing  before  this  on  the 
calendar,  would  be  tried,  and  was  informed  by  Peckham  that 
they  would ;  and  that  they  would  occupy  at  least,  two  or 
three  hours.  Litchfield  believed  in  consequence  thereof,  and 
of  the  information  received  in  regard  to  the  ejectment  suit, 
that  this  cause  could  not  be  reached  on  the  23d  April,  he 


209  NEW-YORK  PRACTICE  REPORTS. 

Morrell  agt.  Gibson. 

therefore  left  to  attend  to  his  engagement,  as  before  men- 
tioned. Gibson,  the  defendant,  swore  to  merits,  and  that  he 
was  in  attendance  at  the  circuit  aforesaid  with  his  witnesses 
prepared  for  trial — that  he  left  court  with  one  of  his  wit- 
nesses about  four  or  five  o'clock  in  the  afternoon  of  the  23d 
April,  (another  cause  was  then  occupying  the  court ;)  he  sup- 
posed that  the  trial  then  on,  would  occupy  the  remainder  of 
the  afternoon  ;  when  he  returned  to  court,  in  an  hour  or  two, 
he  found  a  verdict  had  been  taken  in  this  cause.  George  W. 
Peckham,  one  of  the  attorneys  and  of  counsel  for  plaintiff, 
stated  that  he  frequently  and  repeatedly  urged  defendant's 
attorney  after  the  15th  of  April,  during  the  circuit,  to  have 
this  cause  set  down  for  some  particular  day  of  the  circuit,  as 
it  was  at  considerable  expense,  that  the  plaintiff,  who  was  a 
poor  colored  man,  had  to  attend  with  his  witnesses  daily  at 
the  circuit,  and  the  circuit  judge  was  very  liberal  in  setting 
down  causes  for  the  accommodation  of  parties  and  witnesses ; 
but  the  defendant's  attorney  refused  to  do  so,  giving  as  a  rea- 
son that  his  client  would  not  consent  to  it.  Peckham  also 
stated  that  he  did  not  recollect  distinctly  the  language  he  used, 
but  he  thought  it  impossible  that  he  could  have  told  defend- 
ant's attorney,  that  certain  other  causes  he  inquired  about, 
would  take  at  least  two  or  three  hours,  as  he  had  an  impression 
that  the  causes  would  occupy  about  the  time  which  it 
[*210]  turned  *out  they  did  on  the  trial;  and  which  was  pre- 
viously supposed.  He  thinks  he  told  defendant's  at- 
torney that  they  might  not  occupy  near  as  much  time  as  sup- 
posed, and  but  a  little  time,  or  words  to  that  effect.  Defend- 
ant's attorney  said  nothing  to  him  about  leaving  court  the  23d 
until  he  returned ;  and  from  the  course  pursued  by  defend- 
ant's attorney  under  the  instructions  of  his  client,  he  was 
satisfied  that  the  design  was  to  have  this  cause  passed  when 
the  plaintiff  was  not  ready,  and  thus  get  rid  of  its  trial,  from 
the  inability  of  plaintiff  to  pay  the  costs  which  would  thereby 
be  incurred. 

N.  HILL,  Jr.,  defendant's  counsel. 

E.  C.  LITCHFIELD,  defendants  attorney. 


NEW-YORK  PRACTICE  REPORTS.  210 

Center  agt.  Gosling. 

K.  W.  PECKHAM,  plaintiff's  counsel. 
PECKHAMS  &  COLT,  plaintiff'1  s  attorneys. 

JEWETT,  Justice.  Granted  the  motion,  on  payment  of  costs 
of  opposing  motion  and  of  the  circuit.  Plaintiff  to  be  permit- 
ted to  enter  judgment  to  stand  as  security.  It  was  also  de- 
cided by  the  court  that  no  costs  of  the  judgment  should  be 
allowed,  as  it  was  not  then  entered  up  :  it  must  be  entered  up 
at  the  plaintiff's  expense 


ASA  H.  CENTER  et  al  agt.  LEONARD  GOSLING,  Impleaded,  &c. 

A  motion  by  defendant  for  leave  to  plead  his  bankrupt  discharge  will  be  granted 
on  terms,  notwithstanding  a  delay  of  about  two  years  has  intervened  after 
suit  commenced,  the  plaintiffs  not  having  proceeded  against  him  in  the  mean- 
time. 

June  Term,  1845. 

MOTION  by  defendant  Gosling  to  set  aside  an  inquest,  judg- 
ment, and  all  subsequent  proceedings,  for  irregularity,  with 
costs ;  and  that  the  plea  puis  of  the  defendant  Gosling  be  al- 
lowed to  stand,  &c. 

This  suit  was  commenced  on  two  promissory  notes  against 
defendant,  Gosling,  on  the  6th  March,  1841 ,  who  then  resided 
in  the  county  of  Montgomery,  New- York.  Mitchell  and 
Sacia  appeared  for  defendant,  and  pleaded  general  issue,  20th 
March,  1841.  The  cause  was  noticed  for  trial  and  inquest  for 
the  first  Monday  of  May,  1841,  at  the  New-York  circuit, 
where  the  venue  was  laid,  and  where  the  plaintiff  and  the 
defendant  then  resided :  the  cause  not  having  been  tried,  was 
again  noticed  for  the  July  circuit  thereafter.  The  defendant, 
Gosling,  supposed  that  the  cause  was  abandoned  as  to  him, 
until  it  was  subsequently  again  noticed  for  trial  for  the  last 
May  circuit  in  New- York,  by  notice  of  trial  served  on  Mitchell 
and  Sacia,  defendant's  attorneys,  and  received  by  them  on 
the  14th  April  last.  This  notice  of  trial,  Mitchell  &  Sacia 
sent  to  defendant,  who  resided  then  in  the  city  of  New- York, 


211  NEW-YORK  PRACTICE  REPORTS. 

Center  agt.  Gosling. 

stating  that  they  supposed  the  cause  was  settled  or  abandoned 
as  to  him,  and  advised  him  to  employ  another  attorney.     The 

defendant  Gosling  was  discharged  under  the  bankrupt 
[*211]     *law,  September  19th,  1843.     Wm.  Mulock,  Esq., 

who  was  substituted  as  attorney  for  defendant,  stated 
that  he  called  on  plaintiff's  attorney  and  stated  to  him  that  if 
plaintiff  persevered  in  the  suit,  the  defendant  must  plead  his 
discharge — that  if  plaintiff 's  attorney  had  any  wish  to  test  the 
discharge  he  would  pay  what  costs  plaintiff  claimed,  put  in  a 
plea  of  the  discharge  and  try  it  upon  the  present  notice  before 
Judge  EDMONDS  ;  plaintiff's  attorney  replied  that  it  was  too 
late  to  plead  the  discharge,  and  he  could  not  agree  to  the  pro- 
position. Defendant's  attorney  thereupon  prepared  a  plea  of 
discharge  puis,  &c.,  filed  it  in  bank  and  served  a  copy  on 
plaintiffs'  attorney  on  the  first  day  of  the  last  May  term,  the 
circuit  commencing  at  that  time ;  when  the  cause  was  called, 
defendant's  attorney  stated  the  facts  to  the  judge,  of  the  plea 
being  filed  and  served,  and  exhibited  to  him  the  certificate  of 
discharge,  which  plaintiff's  attorney  admitted,  but  insisted 
that  the  matter  of  defence  arose  two  years  ago.  Defendant's 
attorney  urged  before  the  judge  that  the  pleadings  presented 
were  not  in  fact  the  pleadings  in  the  case,  and  that  if  they 
were  irregular  by  being  pleaded  late,  it  was  then  a  matter  before 
the  supreme  court,  and  not  within  his  control.  The  judge 
decided  he  would  be  governed  by  the  pleadings  which  were 
presented,  at  the  risk  of  plaintiff's  attorney,  and  all  the  ques- 
tions as -to  the  sufficiency  or  the  making  sufficient  as  to  time 
of  the  plea,  could  be  settled  by  the  supreme  court  on  motion  ; 
whereupon  an  inquest  was  taken  by  plaintiff  for  three  hundred 
and  ninety-two  dollars  and  forty-two  cents,  judgment  record 
filed  for  four  hundred  and  sixty  seven  dollars  and  three  cent.?, 
on  the  9th  May,  1845.  Plaintiffs'  attorney  stated  that  he  nor 
the  plaintiffs,  as  he  believed,  ever  had  any  knowledge  of  de- 
fendant's discharge,  until  about  the  time  the  cause  was  noticed 
for  trial  last  April.  On  the  fourth  day  of  the  circuit,  when 
the  cause  was  called  on  for  trial  in  its  order,  the  defendant's 
counsel  offered  to  and  did  plead  and  tender  the  plea  puts,  &c., 


NEW-YORK  PRACTICE  REPORTS.  211 

Anderson  agt.  Vandenburgh. 

to  the  circuit  judge,  the  plaintiffs'  counsel  objected  to  the 
pleas  being  received  or  evidence  of  the  discharge  admitted  ; 
that  after  hearing  counsel  on  both  sides,  the  circuit  judge  de- 
cided that  the  defendant  had  been  guilty  of  unwarrantable 
laches  in  not  pleading  his  discharge  earlier,  especially  as  all 
parties  were  living  in  the  city  of  New- York,  and  he  should 
not  receive  the  pleas  nor  admit  evidence  of  the  discharge,  to 
which  decision  the  counsel  for  defendant  excepted.  Plain- 
tiffs' attorney  stated  that  these  pleas  were  pleaded  at  the  cir- 
cuit, and  not  in  bank  as  he  believed,  and  to  this  end  were 
verified  in  the  usual  manner  required  when  pleaded  at  the  cir 
cuit ;  and  he  affirmed  that  the  question  was  distinctly  argued 
before  and  passed  upon  by  the  circuit  judge  who  ruled 
out  the  pleas  and  defence  *under  them,  on  the  ground  [*212] 
of  delay.  Plaintiff's  attorney  also  stated  that  the 
cause  had  never  been  abandoned  as  to  defendant  Gosling. 

N.  HILL,  JR.,  defendant^  counsel. 
W.  MuLOCK,  defendants'  attorney. 
DANIEL  EGAN,  plaintiffs'  counsel. 
M.  M.  DAVIDSON,  plaintiffs'  attorney. 

JEWETT,  Justice.  Granted  the  motion  on  payment  of  costs 
of  circuit  and  subsequent  proceedings  and  seven  dollars  costs 
of  opposing  this  motion,  with  leave  to  defendant  to  plead  his 
discharge  puis,  &c.,  as  of  October  term,  1843. 


GEORGE  W.  ANDERSON  agt.  JOHN  VANDENBURGH  and  four 

others. 

Original  motion  papers  should  be  addressed  to  all  the  attorneys  opposed,  other- 
wise those  to  whom  they  are  not  addressed  may  appear  and  take  a  rule  for 
costs  for  not  moving,  even  where  the  motion  has  been  made. 

June  Term,  1845. 

MOTION  by  plaintiff  to  set  aside  and  vacate  a  rule  for  costs 


212  NEW-YORK  PRACTICE  REPORTS. 

Anderson  agt.  Vandenburgh 

entered  in  this  cause  on  the  7th  June,  1844,  and  all  subse- 
quent proceedings  for  the  collection  thereof. 

The  original  motion  papers  in  this  cause  for  reference  at 
June  special  term,  1844,  were  addressed  to  Wm.  H.  Greene, 
Esq.,  Buffalo,  as  attorney  for  four  of  the  defendants.  Clark 
and  Pattison,  attorneys  for  the  defendant  Yandenburgh,  were 
served  with  notice  of  same  motion  by  plaintiff's  attorneys, 
and  appeared  and  offered  to  oppose  the  motion,  when  it  was 
made  by  plaintiff's  counsel.  Plaintiff's  counsel  said  he  had 
no  papers  addressed  to  Clark  &  Pattison  in  the  cause,  the  pa- 
pers he  held  were  addressed  to  Wm.  H.  Greene,  Esq.,  Buffalo. 
Clark,  who  appeared  as  counsel  for  Vandenburgh,  supposing 
there  might  be  two  causes  between  the  same  parties,  waited 
for  another  motion  to  be  made  until  the  close  of  the  term,  and 
no  other  being  made,  he  took  a  rule  for  costs  against  plaintiff 
for  not  moving — which  was  sought  to  be  set  aside  by  plain- 
tiff's attorneys  on  this  motion,  on  the  ground  that  the  original 
motion  has  been  made  and  opposed. 

M.  T.  EEYNOLDS,  plaintiff's  counsel. 
TUCKER  &  CRAPO,  plaintiff's  attorneys. 
E.  CLARK,  defendants'  counsel. 
CLARK  &  PATTISON",  defendants'  attorneys. 

JEWETT,  Justice.  Denied  the  motion  with  costs  on  the 
ground  that  Clark  &  Pattison  attended  the  term  in  good  faith, 
with  an  intention  to  oppose  the  motion,  as  they  were  bound 
to  do  by  the  notice  served  on  them,  and  in  consequence  of  the 
omission  of  plaintiff's  attorneys  in  addressing  their  original 
papers  to  Clark  &  Pattison,  they  had  good  reason  to  suppose 
there  might  be  two  causes  between  the  same  parties,  and  took 
a  rule  for  costs  regularly. 


NEW-YORK  PRACTICE  REPORTS.  213 

In  the  matter  of  Robinson. 


*In  the  matter  of  the  application  of  PETER  B.  GLENN     [*213] 
and  MOSES  CLEMENTS. 

A  summons  to  dispossess  a  tenant  under  the  statute,  should  be  served  on  the 
original  lessees  of  the  premises,  as  well  as  the  under  tenant  in  possession ; 
service  upon  the  under  tenant  in  possession  only,  is  not  sufficient  where  it  ap- 
pears the  summons  was  issued  directed  to  the  original  lessees. 

September  Term,  1845. 

THIS  was  an  ex  parte  motion,  for  a  certiorari  to  issue  to 
Joseph  Hoxie,  Esq.,  one  of  the  assistant  justices  of  the  city  of 
New-York,  to  remove  into  this  court  proceedings  had  before 
him  in  the  matter  of  James  Horn. 

The  applicants,  Glenn  and  Clements,  hired  premises  in  New- 
York  from  James  Horn,  and  subsequently  underlet  them  to 
one  Mrs.  Tilford ;  upon  the  non-payment  of  rent,  Horn  applied 
to  Justice  Hoxie  under  the  statute  for  a  dispossessory  summons. 
The  return  showed  that  the  summons  which  was  directed  to 
Glenn  and  Clements  was  returned  served  upon  Mrs.  Tilford 
only,  and  upon  the  return  judgment  was  given  by  default 
against  Glenn  and  Clements,  who  had  not  been  served  with 
summons. 

/ 

EGBERT  F.  WINSLOW,  counsel. 

H.  HUNT,  attorney. 

The  applicants  claimed  that  the  service  was  not  according 
to  the  statute — that  they  had  no  notice  of  the  proceedings. 

BEARDSLEY,  Justice.     Allowed  a  certiorari  on  that  ground. 


In  the  matter  of  the  application  of  JAMES  F.  EOBINSON, 
for  a  certiorari. 

An  affidavit  made  by  a  landlord  for  a  summons  to  dispossess  his  tenant,  should 
aver  positively  the  relation  of  landlord  and  tenant,  and  sufficiently  describe 
the  premises. 

VOL.  I.  20 


214  NEW-YORK  PRACTICE  REPORTS. 

Williams  agt.  Field. 

September  Term,  1845. 

THIS  was  an  ex  parte  motion  for  a  certiorari  to  issue  to 

Joseph  Conselyea,  one  of  the  judges  of  King's  county 

[*214]     courts.      It   was  a  proceeding  under  the   *statute 

authorizing  summary  proceedings  by  landlord  against 

his  tenant  for  non-payment  of  rent. 

Eobinson's  affidavit  showed  that  the  affidavit  of  Ebenezer 
Hanford  upon  which  the  justice  issued  his  summons  did  not 
contain  sufficient  to  give  him  jurisdiction ;  not  showing  by 
positive  averment  the  relation  of  landlord  and  tenant  between 
the  parties,  and  and  not  sufficiently  describing  the  premises,  the 
possession  of  which  was  sought  to  be  recovered. 

KOBERT  F.  WlNSLOW,  attorney  and  counsel  for  applicant. 

BEARDSLEY,  Justice.  Allowed  the  certiorari  upon  the 
grounds  mentioned. 

NOTE. — The  affidavits  of  the  applicants  in  the  above  cases  showed  that  the 
justices  refused  to  furnish  copies  of  the  affidavits  and  papers  upon  which  the 
proceedings  were  had,  or  to  allow  copies  to  be  taken.  The  judge  remarked 
that  if  this  was  so,  such  conduct  was  extremely  reprehensible. 


MARTIN  WILLIAMS  agt.  DAVID  FIELD. 

Where  an  affidavit  is  made  by  an  agent  under  the  statute  authorizing  summary 
proceedings  to  recover  possession  of  land,  motion  papers  made  subsequently 
in  the  matter  should  be  entitled  with  the  name  of  the  principal,  and  not  of 
the  agent. 

September  Term,  1845. 

MOTION  by  Field  to  quash  a  writ  of  certiorari  for  irregu- 
larity. 

The  counsel  for  plaintiff  objected  that  the  moving  papers 
showed  that  the  proceedings  in  the  justice's  court  were  be- 
tween Isaac  Merritt  and  said  Martin  "Williams ;  and  that  David 
Field  was  only  the  agent  for  Merritt,  and  as  such,  made  the 
affidavit  under  the  statute  authorizing  summary  proceedings 
to  recover  possession  of  land. 


NEW-YORK  PRACTICE  REPORTS.  214 

Baker  agt.  The  Long  Island  Railroad  Company. 

N.  B.  HoxiE,  defendants  counsel  and  attorney. 
R.  H.  SHANNON",  plaintiff'1  s  counsel  and  attorney. 

BEARDSLEY,  Justice.    The  defendant's  papers  are  therefore 
wrongly  entitled. 

Motion  denied  with  costs,  without  prejudice. 


ASA  BAKER  agt.  THE  LONG  ISLAND  RAILROAD  COMPANY. 

The  statute  regulating  the  commencement  of  the  action  of  ejectment  does  not 
apply  to  corporations.  A  rule  to  plead  and  notice  thereof  indorsed  on  the 
declaration  in  the  usual  manner,  and  served  on  the  defendants,  who  were  a 
corporation  sued  by  summons  in  the  ejectment,  held  regular. 

September  Term,  1845. 

MOTION  by  defendants  to  set  aside  a  rule  to  plead  entered 
in  the  common  rule  book,  in  the  clerk's  office  in  New-York, 
July  31,  1845,  for  irregularity. 

*The  suit  was  ejectment ;  commenced  by  sum-  [*215] 
mons,  upon  the  return  of  which  the  defendants  ap- 
peared by  McCoun  &  Clark,  their  attorneys.  The  plaintiff 's 
attorney  entered  the  ordinary  rule  to  plead  in  the  common 
rule  book,  and  served  the  declaration  with  notice  of  such  rule 
indorsed ;  instead  of  serving  the  declaration  with  the  notice 
indorsed  thereupon,  that  the  same  would  be  filed  upon  some 
day  in  the  same  or  the  next  term,  and  that  a  rule  to  plead 
would  be  thereupon  entered  as  required  by  the  12th  section  of 
the  statute,  regulating  "  the  action  of  ejectment,"  (2  E.  S.  p. 
231.)  In  opposition  to  the  motion,  it  was  insisted  that  the 
statute  regulating  the  action  of  ejectment  applied  only  to  suits 
against  natural  persons,  and  that  the  section  (12)  did  not  ap- 
ply to  an  action  against  a  corporation  which  could  only  be 
commenced  by  summons.  (2  R.  S.  p.  374,  §  4 ;  Brown  agt. 
The  Syracuse  and  Utica  Railroad  Company,  5  Hill,  554.)  In 
support  of  the  motion,  it  was  insisted  that  the  repugnance  of 
the  two  statutes  should  be  reconciled  by  requiring  the  action 
of  ejectment  against  a  corporation  to  be  commenced  by  sum- 


215  NEW-YORK  PRACTICE  REPORTS. 

Johnson  agt.  Johnson. 

mons,  and  that  all  the  proceedings  subsequently  to  the  return 
of  the  summons  should  be  had  according  to  the  statute. 

H.  F.  CLARK,  defendant's  counsel. 
McCotJN  &  CLARK,  defendants  attorneys. 
N.  HILL,  JR.,  plaintiff's  counsel. 
JOHN  VANDERBILT,  plaintiff's  attorney. 

BEARDSLEY,  Justice.  Held,  that  the  statute  regulating  the 
commeD cement  of  the  action  of  ejectment  did  not  apply  to  cor- 
porations, and  that  the  plaintiff's  proceedings  were  regular. 

Motion  denied  with  costs. 


MARVIN  JOHNSON,  plaintiff  in  error  agt.  WESLEY  JOHNSON, 
defendant  in  error. 

After  assignment  of  error  and  joinder  therein  to  a  writ  of  error  to  the  common 
pleas,  an  additional  return  will  not  be  allowed. 

September  Term,  1845. 

MOTION  by  defendant  in  error  to  require  the  court  of  com- 
mon pleas  of  Franklin  county  to  amend  their  return  to  the 
writ  of  error  in  this  cause,  by  returning  a  bill  of  exceptions 
filed  in  the  cause. 

This  suit  was  commenced  before  a  justice  of  the  peace,  by 
Wesley  Johnson  against  Marvin  Johnson,  and  Marvin  John- 
son obtained  judgment  before  the  justice  for  $3.61  against 
Wesley.  Wesley  Johnson  removed  the  judgment  to  the  court 
of  common  pleas  of  Franklin  county.  On  the  return  'of  the 
certiorari  an  issue  of  fact  was  joined,  which  was  tried  before 
the  common  pleas  at  the  April  term,  1845,  upon  which 
[*216]  trial  Marvin  Johnson  ^obtained  a  verdict  in  his  favor. 
On  the  trial,  Wesley  Johnson  took  exceptions,  which 
was  sealed  by  a  majority  of  the  court  who  were  present  at  the 
trial,  and  filed  on  the  12th  of  July,  1845 ;  no  order  to  stay 
proceedings  was  procured.  After  the  exceptions  were  taken, 


NEW-YORK  PRACTICE  REPORTS.  216 

Johnson  agt.  Johnson. 

and  at  the  same  April  term  of  the  common  pleas  the  cause 
was  argued  on  the  justice's  return,  and  the  judgment  of  the 
justice  was  reversed,  and  the  record  of  reversal  filed  on  the 
6th  May,  1845,  and  on  the  7th  June,  1845,  an  execution  was 
issued  thereon.  Afterwards,  on  the  28th  June  last,  Marvin 
Johnson  brought  a  writ  of  error  to  remove  the  judgment  of 
reversal  to  this  court ;  the  return  was  made  on  the  28th  June, 
1845,  before  the  bill  of  exceptions  was  settled :  assignment  of 
error  and  joinder  therein  on  the  23d  July,  1845. 

S.  H.  HAMMOND,  defendants  counsel. 
JOHN  HUTTON,  defendants  attorney. 
GJ  ALLEN,  plaintiffs  counsel. 
W.  A.  WHEELER,  plaintiffs  attorney. 

Defendant  in  error  moved  on  the  ground  that  it  was  im- 
portant and  necessary  for  him  that  the  bill  of  exceptions  should 
be  returned  to  this  court  as  a  part  of  the  record,  in  order  that 
the  whole  merits  and  the  right  of  the  matter  might  appear  on 
the  record.  Plaintiff  in  error  insisted  that  the  party  making 
the  motion  prevailed  on  the  whole  record  in  the  common  pleas, 
but  took  exceptions  on  the  trial  of  the  issue  in  fact ;  perfected 
his  judgment  and  issued  execution  before  the  bill  of  excep- 
tions was  settled  ;  that  now  he  co.uld  not  send  up  a  bill  of  ex- 
ceptions for  sustaining  his  own  judgment ;  the  defendant  in 
error  admitted  the  return  to  be  perfect  by  joining  in  error. 
(2  Cow.  408.) 

BEARDSLEY,  Justice.  The  necessity  for  this  motion  is  very 
loosely  presented  from  the  papers ;  although  an  error  of  fact 
may  have  been,  yet  after  assignment  of  error  and  joinder  there- 
in, it  has  never  been  allowed  to  have  an  additional  return  put 
in.  The  motion  is  entirely  without  authority,  and  must  be  de- 
nied with  costs. 

Rule  accordingly. 


216  NEW-YORK  PRACTICE  REPORTS. 


Snow  agt.  Greea 


WILLIAM  W.  SNOW  and  JACOB  P.  VAN  WOERT  agt.  JAMES 
GREEN  and  JOHN  C.  FISH. 

Assignees  for  the  benefit  of  creditors  are  not  liable  for  costs  on  a  suit  commenced 
before  the  assignment,  and  carried  on  afterwards  by  the  assignor  as  plaintiff, 
without  the  knowledge  or  control  of  the  assignees :  although  the  assignor  was 
a  general  agent  of  the  assignees  to  settle  the  assigned  property ;  judgment  for 
costs  being  obtained  against  him  after  the  assignment. 

September  Term,  1845. 

MOTION  by  defendants  that  an  attachment  issue  against 
Boderick  I.  Emmons  and  Peter  Yan  Woert,  as  as- 
[*217]    signees  of  the  plaintiffs,  for  refusing  *to  pay  defend- 
ants' costs  in  this  suit. 

The  plaintiffs  sued  the  defendants  in  the  summer  of  1843, 
on  a  book  account  for  $130.  On  the  16th  October,  1843,  the 
plaintiffs  being  insolvent,  made  a  general  assignment  of  all 
their  effects  to  Eoderick  I.  Emmons  and  Peter  Van  Woert, 
for  the  benefit  of  all  their  creditors,  and  made  Jacob  F.  Van 
Woert  their  agent,  to  settle  up  the  assigned  accounts,  he  act- 
ing under  the  specific  direction  of  the  assignees.  The  demand 
against  the  defendants,  which  was  then  in  suit,  was  assigned 
with  the  other  effects,  &c.,  of  plaintiffe.  On  the  3d  May,  1845, 
a  judgment  of  nonsuit  for  $185.55  cost  was  rendered  against 
the  plaintiffs  in  favor  of  the  defendants,  the  cause  not  having 
been  tried  on  the  merits.  A  demand  was  subsequently  made 
of  the  assignees  for  the  amount  of  the  costs,  and  payment 
refused.  Fish  swore  in  his  affidavit  that  during  the  pendency 
of  the  suit,  he  told  Emmons,  one  of  the  assignees,  that  unless 
the  assignees  interfered  and  stopped  the  suit,  the  defendants 
should  look  to  them  for  costs.  Emmons  stated  in  his  affidavit 
that  in  the  winter  previous  to  the  judgment  of  nonsuit,  Fish, 
inquired  of  him,  how  it  would  be  about  costs  in  the  case  of 
Snow  and  Van  Woert,  provided  the  defendants  succeeded ;  he 
replied  that  he  knew  nothing  about  it ;  it  was  a  matter  be- 
tween themselves.  Fish  did  not  inform  him  anything  about 
the  nature  of  the  action,  and  he  did  not  know  but  it  was  an 
action  of  trespass  or  ejectment  from  anything  which  he  learned 


NEW-YORK  PRACTICE  REPORTS.  21 Y 

Snow  agt.  Green. 

from  Fish.  Jacob  P.  Tan  "Woert,  swore  that  he  carried  on 
the  suit  with  his  own  funds ;  the  assignees  never  had  any  con- 
trol of  the  suit,  and  did  not,  directly  or  indirectly,  countenance 
the  same,  and  he  believed  the  assignees  knew  nothing  about 
it ;  both  the  assignees  swore  to  the  same  effect. 

E.  W.  PECKHAM,  defendants'  counsel. 
J.  B.  STEELE,  defendants'  attorney. 
N.  HILL,  JR.,  counsel  for  assignees. 
W.  H.  OLIN,  attorney  for  assignees. 

The  defendants  insisted  that  Jacob  P.  Yan  "Woert  was  a 
general  agent  of  the  assignees,  and  had  carried  on  the  suit 
with  their  knowledge,  and  that  the  assignees  under  Van 
Woert's  general  authority  from  them  were  liable  for  costs. 
On  the  part  of  the  assignees,  it  was  insisted  that  the  assignees 
were  such  solely  for  the  benefit  of  all  the  creditors  of  the  plain- 
tiffs, that  the  assignees  knew  nothing  of  the  suit  being  com- 
menced or  carried  on  against  the  defendants,  who  were  both  in- 
solvent ;  that  the  demand  for  which  the  suit  was  brought  is  a 
valid  and  subsisting  claim  against  defendants,  and  js  still  unpaid. 

BEARDSLEY,  Justice.  There  is  plausible  ground  for  the 
motion.  It  is  however  positively  sworn  to  by  the  assignees 
and  agent,  that  the  assignees  never  knew  anything  about  this 
suit.  All  the  affidavits  go  to  show  that  at  the  time  of  pros- 
ecution the  defendants  were  insolvent.  Some  of  the 
*affidavits  show  that  there  was  a  general  authority  of  [*218] 
the  agent.  The  agent  swears  whatever  he  did  in  this 
suit  he  did  in  his  own  right,  and  advanced  his  own  money. 
The  court  does  not  feel  at  liberty  to  disbelieve  the  two  assign- 
ees, that  they  had  never  interfered  and  carried  on  the  suit. 
Although  the  agent  was  authorized  to  do  some  things  for  the 
assignees,  yet  it  appears  he  never  had  any  express  authority 
from  them  to  carry  on  this  suit.  The  assignees  expressly  deny 
ever  having  any  knowledge  of  the  cause.  The  case  does  not 
appeal  very  strongly  to  the  equity  powers  of  the  court,  and 
must  be  denied,  but  without  costs. 


217  NEW-YOKE:  PRACTICE  REPORTS. 

Miller  agt.  Huntington. 


EBENEZER  G.  BELKNAP  agt.  EDWIN  E.  IVES  and  THOMAS  S. 

CARGILL. 

Notice  of  motion  given  for  the  first  Tuesday  of  August,  held  bad,  a  new  notice 
should  have  been  given  for  the  September  term.  The  new  rules  having  abol- 
ished the  August  term. 

September  Term,  1845. 

H.  WILKES,  defendants'  attorney  for  motion. 

THE  court  refused  to  allow  this  motion  to  be  taken  by  de- 
fault, because  the  notice  of  motion  was  for  the  first  Tuesday  of 
August.  A  new  notice  should  have  been  given  for  the  Sep- 
tember term. 


JOHN  S.  MILLER  agt.  SAMUEL  G.  HUNTINGTON. 

Proof  of  service  of  subpoena  is  not  taxable  where  it  is  made  only  for  the  purpose 
of  "being  prepared  to  move  for  an  attachment,  in  case  the  witness  does  not  at- 
tend. 

Where  on  the  first  day  of  the  circuit  the  cause  was  set  down  for  a  subsequent 
day,  and  the  witness  in  the  meantime  returned  home,  held,  that  two  charges 
for  mileage  were  taxable. 

In  addition  to  the  charge  of  fifty  cents,  for  serving  costs  with  notice  of  taxation, 
a  charge  of  twenty-five  cents  is  also  taxable  for  the  notice  of  taxation  itself. 

September  Term,  1845. 

MOTION  by  plaintiff  for  retaxation  of  defendant's  costs. 

The  bill  contained  a  charge  for  proof  of  service  of  subpoena 
on  witnesses ;  a  charge  for  the  travelling  fees  of  a  witness  on 
the  first  day  of  the  circuit,  a  similar  charge  for  travelling  fees 
of  the  same  witness  on  a  subsequent  day  in  the  same  circuit, 
for  which  the  cause  was  set  down,  the  witness  having  in  the 
meantime  returned  home.  And  a  charge  of  twenty-five  cents 
for  notice  of  taxation  of  costs,  in  addition  to  the  charge  of  fifty 
cents  for  serving:  the  costs  with  notice  of  taxation. 


NEW-YORK  PRACTICE  REPORTS.  218 

Thompson  agt.  Smith. 

J.  KOON,  plaintiff's  counsel  and  attorney. 

C.  R.  RICHARDS,  defendant's  counsel  and  attorney. 

BEARDSLEY,  Justice.    Held,  that  the  proof  of  service  of 
subpoena,  was  not  taxable,  it  being  only  necessary  in 
case  of  the  default  of  the  witness,  *and  there  being  a     [*219] 
proper  charge  against  him ;  but,  that  both  charges  for 
travelling  fees,  and  the  charge  of  twenty-five  cents  for  notice 
of  taxation,  were  properly  allowed  by  the  taxing  officer. 


JONATHAN  THOMPSON  et  al  agt.  HENRY  B.  SMITH,  late 
supervisor,  &c. 

A  side  judge  of  the  court  of  common  pleas,  if  present  at  the  trial,  has  authority 
to  give  a  certificate  under  the  act  of  1836,  that  the  cause  is  a  proper  one  to  be 
carried  to  the  supreme  court,  where  the  first  judge  is  a  party  to  the  suit, 
although  he  is  in  the  county  at  the  time  the  certificate  is  given,  and  was 
present  at  the  trial. 

September  Term,  1845. 

MOTION  by  defendant  to  quash  a  writ  of  error. 

The  defendant  in  error  in  this  cause,  Smith,  was  first  judge 
of  Franklin  county,  was  present  on  the  trial  of  the  cause  in 
the  common  pleas  (but  took  no  part  therein).  Win.  King, 
one  of  the  side  judges  who  was  present  on  the  trial,  made  a 
certificate,  within  thirty  days  from  the  filing  the  record,  under 
the  laws  of  1836,  that  this  cause  was  a  proper  one  to  be  carried 
to  the  supreme  court.  A  writ  of  error  was  issued  to  the  com- 
mon pleas.  At  the  time  of  giving  the  certificate,  Smith,  the 
first  judge,  was  in  the  county,  and  also  Asa  Hascall  a  supreme 
court  commissioner,  who  was,  by  an  act  of  1840,  authorized 
and  might  do  all  such  acts  and  duties  in  relation  to  any  suit 
depending  in  the  court  of  common  pleas,  as  the  first  judge 
being  of  the  degree  of  counsellor  of  the  supreme  court,  might 
do  out  of  court.  Smith,  the  first  judge,  was  not  of  the  degree 
of  counsellor  &c. 


219  NEW-YORK  PEACTICE  REPORTS. 

Hale  agt.  Heyser. 

S.  HAMMOND,  defendant's  counsel 
A.  B.  PARMELEE  defendants  attorney. 
P.  GANSEVOORT,  plaintiffs'  counsel. 
JOHN  HUTTON,  plaintiffs'  attorney. 

The  defendant  insisted  that  the  side  judge  could  not  prop- 
erly grant  the  certificate  under  the  statute,  when  the  first  judge 
was  in  the  county,  or,  if  the  first  judge  could  not  act  in  this 
case,  then  Asa  flascall,  the  supreme  court  commissioner, 
should  have  given  the  certificate. 

BEARDSLEY,  Justice.  The  certificate  was  lawfully  granted, 
unless  the  supreme  court  commissioner,  by  the  act  of  1840, 
had  exclusive  authority ;  within  the  equity  of  the  case  the  first 
judge  should  not  be  regarded  as  first  judge  of  the  county. 
The  act  of  1840  provides  that  the  supreme  court  commissioner 
of  Franklin  county  may  do  all  such  acts,  &c.,  as  the  first  judge, 
being  of  the  degree  of  counsellor  of  the  supreme  court,  might  do  out 
of  court.  A  first  judge  not  of  the  degree  of  counsellor  of  the 
supreme  court,  might  under  the  act  of  1836,  grant  the  certifi- 
cate, if  present  at  the  trial.  Whatever  power  the  supreme 
court  commissioner  might  have  exercised  in  this  case  under 
the  act  of  1840, 1  think  the  side  judge  had  authority,  he  being 
present  at  the  trial,  and  the  certificate  was  properly  granted. 


[*220]    *WILLIAM  C.  HALE  agt.  EDWARD  HEYSER  et  al 

Irregular  service  of  a  writ  of  nuisance  is  of  no  effect.  A  motion  to  set  it  aside 
will  be  denied,  where  it  appears  there  has  been  no  subsequent  proceedings ; 
for  the  reason  that  the  service  does  not  affect  anything. 

September  Term,  1845. 

MOTION  by  defendants  to  set  aside  writ  of  nuisance  for 
irregular  service  of  the  writ. 

It  appeared  by  the  copy  return,  that  the  copy  served  on 
defendants  was  not  certified  according  to  the  provisions  of  2  R.  S. 
2d  ed.  257,  §  4. 


NEW-YORK  PRACTICE  REPORTS.  220 

Adams  agt.  Elliott. 

J.  VAN  BUREN,  defendants'1  counsel. 
J.  L.  BOOKSTAVER,  defendants'  attorney. 
E.  COOKE,  plaintiffs  counsel  and  attorney. 

It  appeared  that  no  subsequent  proceedings  had  been  had 
in  the  cause. 

BEARDSLEY,  Justice.  Denied  the  motion  without  costs,  on 
the  ground  that  the  service  being  irregular,  it  was  of  no  effect. 
There  was  no  subsequent  proceedings  had  to  be  affected  by  it. 


PLATT  ADAMS,  Executor,  &c.  agt.  JAMES  Gr.  ELLIOTT,  JR. 

Where  personal  property  has  been  sold  on  execution,  and  the  funds  arising  from 
the  sale  have  been  kept  together,  and  on  an  objection  made  to  the  actual  and 
sufficient  levy  on  a  portion  of  the  property  sold,  it  was  held  that  the  extent 
and  sufficiency  of  the  levy  was  a  fair-question  for  a  jury.  And  a  motion  for 
the  payment  over  of  the  money  on  the  sale  will  be  denied  without  prejudice 
to  claimant's  right  to  bring  an  action  against  the  sheriff 

September  Term,  1845. 

MOTION  by  Edward  J.  Jaques,  landlord,  that  the  sheriff  of 
the  city  and  county  of  New- York  pay  over  to  him,  as  landlord, 
the  proceeds  of  the  sales  of  the  defendant's  goods  and  chattels. 

The  sheriff,  by  virtue  of  an  execution  against  Elliott,  claimed 
to  have  levied  upon  the  furniture,  &c.,  in  the  Park  Place 
House,  New- York ;  but  the  officer  did  not  view  the  whole  of 
the  property  alleged  to  have  been  levied  upon ;  nor  did  he 
enter  the  rooms  in  which  the  principal  portion  of  the  prop- 
erty was  contained.  He  took  a  receiptor's  bond,  the  schedule 
attached  to  which,  was  insisted,  embraced  all  the  property  in 
the  house,  whether  the  same  had  come  under  the  view  of  the 
sheriff  or  not,  under  the  claim,  "  lot  of  all  other  sundries  on 
said  premises."  The  property  was  sold  18th  June ;  the  alleged 
levy  took  place  on  the  12th  April.  The  rent  for  which  the 
landlord  claimed  to  be  paid  out  of  the  proceeds  of  sale  accrued 
on  the  first  day  of  May. 

HORACE  F.  CLARK,  com.  for  landlord. 
C.  F.  GRIM,  attorney  for  landlord. 


220  NEW-YORK  PRACTICE  REPORTS. 

The  People  agt.  Backman. 

JOHN  N".  TAYLOR,  plaintiffs  counsel. 
L.  BENTON,  plaintiff's  attorney. 

In  support  of  the  motion,  it  was  insisted  that  there 
[*221]  was  no  actual  and  *sufficient  levy  upon  the  property 
as  against  the  landlord,  prior  to  the  accruing  of  the 
rent ;  that  to  constitute  a  valid  and  effectual  levy  as  against 
third  parties,  it  is  essential  that  the  property  levied  upon 
should  come  under  the  view  of  the  officer.  ( Van  Wyck  agt. 
Pine,  2  Hill,  666.) 

BEARDSLEY,  Justice.  Held,  that  the  extent  and  sufficiency 
of  the  levy  were  fair  questions  to  be  submitted  to  a  jury,  but 
that  as  the  levy  upon  some  portion  of  the  property  seemed  to 
be  sufficient,  (some  portion  of  the  property  having  come  under 
the  view  of  the  officer,)  and  inasmuch  as  the  proceeds  of  the 
sale  had  been  mingled  by  the  sheriff,  so  that  the  court  had  not 
the  power  of  discriminating ;  the  motion  should  be  denied, 
but  without  prejudice  to  the  landlord's  action  against  the 
sheriff. 

Kule  accordingly. 


THE  PEOPLE  agt.  ISAAC  BACKMAN  and  JAMES  H.  MINER. 

Actions  on  recognizances  should  be  brought  in  the  original  court  in  which  the 

same  were  taken,  where  the  bail  all  reside  in  the  county. 
This  court  has  jurisdiction,  but  it  is  more  fit  and  proper  that  the  original  court 

should  exercise  its  equitable  powers  which  are  expressly  given  to  it. 

September  Term,  1845. 

MOTION  by  defendants  to  set  aside  declaration  and  subse- 
quent proceedings  for  irregularity. 

Backman  and  Miner,  the  defendants,  entered  into  a  recog- 
nizance, as  bail  for  one  Allen,  at  the  Schenectady  general 
sessions  in  March  last.  Subsequently  the  district  attorney  of 
Schenectady  commenced  an  action  of  debt,  in  this  court,  against 
the  defendants,  as  bail  on  their  recognizance ;  both  defendants 


NEW-YORK  PRACTICE  REPORTS.  221 

The  People  agt.  Backman. 

residing,  and  having  for  many  years  resided  in  Schenectady 
county. 

JAMES  FULLER,  defendants'  counsel  and  attorney. 
P.  POTTER,  district  attorney,  counsel  for  people. 

It  was  insisted  on  the  part  of  defendants,  that  the  action  of 
debt  against  bail  must  be  brought  in  the  same  court  in  which 
the  original  suit  was  commenced,  unless  the  bail,  or  one  of  them, 
resides  out  of  the  county ;  in  which  case  they  may  be  sued  in 
this  court,  although  the  original  suit  was  in  the  court  of  com- 
mon pleas ;  (9  Johns.  Rep.  80  ;  7  do.  318  ;)  and  that  the  defend- 
ants' remedy  was  by  motion.  (13  Wend.  33 ;  1  Hill,  604 ;  3  Hill, 
558 ;  13  Johns.  424.)  That  the  common  pleas  have  equity 
powers  in  the  matter  of  recognizances  given  to  them  by  stat- 
ute, (2  R.  S.,  p.  399,  §  37,)  which  do  not  belong  to  this  court, 
and  are  therefore  best  qualified  to  decide  the  matter  or  to  dic- 
tate terms.  (1  Hill,  604 ;  3  Hill,  558.)  On  the  part  of  the  peo- 
ple it  was  insisted  that  the  2  R.  S.  398,  §  29,  provides  that 
the  district  attorney  of  the  county  shall  prosecute  the 
*same  by  action  of  debt  for  the  penalty,  and  the  pro-  [*222] 
ceedings  and  pleadings  shall  in  all  respects  be  as  in 
personal  actions,  for  the  recovery  of  any  debt.  This  statute 
changed  the  law  of  1818,  (Session  Laws,  p.  307,  §  7,)  which 
authorized  the  collection  of  fines  and  recognizances.  Execu- 
tion cannot  now  be  issued  upon  recognizances,  they  must  be 
sued,  in  an  action  of  debt,  (12  Wend.  475  ;)  and  the  supreme 
court  have  jurisdiction.  (4  Wend.  387  ;  People  agt.  Blackman, 
17  Wend.  252.)  If  this  court  have  jurisdiction  there  is  no  ap- 
parent irregularity. 

BEARDSLEY,  Justice.  Both  the  defendants  reside  in  Sche- 
nectady county.  The  original  court  has  equitable  powers 
expressly  given  to  it  by  statute,  which  is  expressly  prohibited 
by  any  other.  I  do  not  deny  but  what  this  court  has  juris- 
diction, but  it  will  not  exercise  it  because  it  is  inconvenient ; 
it  is  more  fit  and  proper  that  the  original  court  should  exer- 
cise the  equitable  power  thrown  upon  it ;  it  is  inconvenient 


222  NEW-YORK  PRACTICE  REPORTS. 

Pease  agt.  Blossom. 

for  this  court,  and  there  is  no  special  reason  why  it  should, 
as  where  the  party  lives  out  of  the  county. 
Motion  must  be  granted. 


THE  PEOPLE  ex  rel.  DANIEL  GRIFFIN  agt.  THE  JUDGES  OF 
THE  NEW-YORK  COMMON  PLEAS. 

Notice  of  motion  for  a  mandamus,  should  not  ask  for  costs. 

September  Term,  1845. 

MOTION  for  a  mandamus  to  the  defendants. 

This  motion  was  on  affidavits  and  notice ;  the  notice  asked  for 
costs.  After  argument  on  the  merits,  it  was  denied ;  and  costs 
given  against  the  relator,  for  the  reason  that  he  asked  costs  in 
his  notice. 

A.  THOMPSON,  relator 's  counsel. 
A.  M.  BURT,  relator's  attorney. 
WM.  H.  BELL,  defendants'  counsel. 
BELL  &  COE,  defendants'  attorney. 


WILLIAM  PEASE    agt.    HIRAM    S.  BLOSSOM  and  LEE  T. 

EOWLEY. 

The  venue  will  be  changed  to  the  county  whore  it  appears  the  cause  of  action 
arose  and  the  witnesses  are  required,  although  the  opposite  party  may  swear 
to  a  greater  number  of  witnesses  to  retain  the  venue. 

September  Term,  1845. 

MOTION  by  defendants  to  change  the  venue. 

This  was  a  motion  by  defendants  to  change  the  venue  from 
the  city  and  county  of  New-York  to  the  county  of  Washing- 
ton, on  eleven  witnesses.  The  action  was  brought  on  a  prom- 
issory note,  and  the  cause  of  action  arose  in  Washington 


NEW-YORK  PRACTICE  REPORTS.  223 

Barnard  agt.  Darling. 

county.  The  defendants  alleged  that  there  was  no 
consideration  for  *part  of  the  amount  of  the  note,  [*223] 
and  gave  the  facts  and  circumstances  upon  which 
they  should  rely  to  prove  a  failure  of  consideration,  and  for 
which  they  should  want  the  witnesses.  On  the  part  of  the 
plaintiff,  it  appeared  that  one  John  Abbott,  of  the  city  of  New- 
York,  was  the  real  plaintiff  in  the  cause ;  that  Pease  was  his 
agent,  and  took  the  note  in  his  own  name,  but  it  was  the 
property  of  Abbott ;  that  Pease  had  informed  him,  Abbott, 
that  the  facts  and  circumstances  mentioned  by  defendants  as 
having  made  a  part  of  the  consideration  of  the  note,  did  not 
enter  into  the  consideration,  and  formed  no  part  thereof ;  that 
issue  was  joined,  and  the  cause  noticed  for  trial  at  the  New- 
York  September  circuit ;  and  if  the  venue  should  be  changed, 
there  would  be  no  opportunity  to  try  it  before  June  next. 
Plaintiff  Abbott  swore  to  fourteen  witnesses  residing  in  New- 
York  and  Kings  counties,  as  material  for  him  on  the  trial,  &c. 

0.  F.  THOMPSON,  defendants'  counsel. 

J.  .W.  &  0.  F.  THOMPSON,  defendants'  attorneys. 

R.  H.  SHANNON,  plaintiff's  counsel  and  attorney. 

BEARDSLEY,  Justice.  Thought  the  motion  should  be 
granted.  The  cause  of  action  arose  in  "Washington  county, 
and  the  defendants  allege  a  failure  of  part  of  the  consideration 
of  the  note,  and  state  that  their  witnesses  will  be  necessary 
to  prove  that.  I  am  unable  to  see  the  materiality  of  the  wit- 
nesses on  the  part  of  the  plaintiff,  residing  in  New-York  and 
Kings ;  the  note  was  given  in  Washington  county,  and  it  ap- 
pears that  the  proof  required  will  be  in  "Washington  county. 

Motion  granted,  and  cause  referred. 


FREDERICK  J.  BARNARD  et  al.  agt.  CHARLES  A.  DARLING. 

The  affidavit  of  the  amount  due  by  the  condition  of  a  bond,  on  judgment  by 
confession,  need  not  be  filed. 


223  NEW-YORK  PRACTICE  REPORTS. 

Livingston  agt.  Hicks. 

A  wrong  indorsement  on  an  execution  is  not  ground  for  setting  aside  proceed- 
ings where  the  execution  has  been  returned  nuUa  lona. 

September  Term,  1845. 

MOTION  by  defendant  to  set  aside  judgment  and  execu- 
tion, &c. 

This  was  a  judgment  on  bond  and  warrant  of  attorney : 
the  motion  was  made  on  the  ground,  that  no  affidavit  of 
amount  due  by  the  condition  of  the  bond  was  filed,  and  that 
a  wrong  indorsement  upon  the  execution  was  made,  it  being 
indorsed  for  a  larger  sum  to  be  collected,  than  was  due  by  the 
condition  of  the  bond.  It  appeared  that  the  execution  was 
returned  nulla  bona. 

C.  P.  COLLIER,  defendants  counsel. 

COLLIER  &  ELMENDORF,  defendant's  attorneys. 

OTIS  ALLEN,  plaintiffs1  counsel. 

ALLEN  &  HASTINGS,  plaintiff's'  attorneys. 

[*224]  *BEARDSLEY,  Justice.  It  is  not  necessary  that 
the  affidavit  of  the  amount  due  by  the  condition  of 
the  bond,  should  be  filed.  The  execution  is  returned  nulla 
bona,  and  the  wrong  indorsement  on  it  is  not  a  sufficient 
ground  to  set  aside  the  proceedings  now.  , ,; 

Motion  denied  with  costs. 


MORTIMER  LIVINGSTON  et  al.  agt.  GEORGE  S.  HICKS. 

A  declaration  in  ejectment  served  with  the  ordinary  notice  to  plead  in  twenty  days 
after  service  is  not  sufficient.  The  statute  must  be  strictly  complied  with  in 
commencing  actions  of  ejectment. 

The  irregularity  being  a  matter  of  substance,  the  objection  of  laches  (one  term 
having  passed)  will  not  lie. 

September  Term,  1845. 

MOTION  by  defendant  to  set  aside  default  and  subsequent 
proceedings  in  action  of  ejectment,  for  irregularity. 

This  motion  was  made  upon  the  ground  that  no  rule  to  plead 


NEW-YORK  PRACTICE  REPORTS.  224 

Clark  agt.  Jewett. 

was  entered  or  notice  served  that  declaration  would  be  filed,  on 
a  particular  day  in  term  and  rule  entered. 
t     The  notice  indorsed  on  the  declaration  was  the  usual  notice 
to  plead  in  twenty  days,  after  service,  &c. 

T.  SMITH,  defendants  counsel. 
SMITH  &  TAYLOR,  defendants  attorneys. 
A.  TABER,  plaintiffs'  counsel. 
A.  WAGER,  plaintiffs'  attorney. 

t 
Plaintiffs'  counsel  insisted  that  as  the  party  had  notice  of 

the  irregularity  on  the  papers  when  declaration  was  served, 
April  5,  1845,  he  had  been  guilty  of  laches  in  not  making  his 
motion  at  June  special  term. 

BEARDSLEY,  Justice.  The  statute  prescribes  the  mode  of 
commencing  actions  of  ejectment,  which  has  not  been  com- 
plied with.  The  defendant  was  not  bound  to  presume  plain- 
tiffs would  go  on  and  take  judgment.  The  proceedings  were 
clearly  irregular  and  must  be  set  aside  with  costs. 

Eule  accordingly. 


EDWARD  CLARK  agt.  JOHN  JEWETT  et  al. 

Where  a  party  makes  a  case  and  gives  notice  of  argument  before  the  circuit  judge, 
but  serves  no  copy  case  before  argument,  the  opposite  party  appearing  for  the 
argument,  and  decision  being  made  in  his  favor,  no  one  appearing  on  behalf  of 
the  party  moving,  an  appeal  from  the  circuit  judge  subsequently,  by  the  mov- 
ing party,  will  be  set  aside. 

September  Term,  1845. 

MOTION  by  plaintiff  to  set  aside  defendants'  appeal  from 
circuit  judge. 

The  plaintiff  moved  on  the  ground  that  no  copy  case  made 
by  defendant  was  served  before  the  day  of  argument, 
before  the  circuit  judge,  and  that  *no  one  appeared     [*225] 
at  the  time  of  the  argument  on  the  part  of  the  defend- 
ants, according  to  the  notice.    The  plaintiff  having  taken  judg- 

VOL.  I.  21 


225  NEW-YORK  PRACTICE  REPORTS. 

Dunham  agt  Van  Arnum. 

ment  by  default  on  filing  decision  of  circuit  judge.  The  plain- 
tiff also  gave  notice  that  inasmuch  as  the  object  of  this  motion 
was  to  bring  the  cause  to  a  close,  the  court  would  be  asked 
that  the  costs  of  the  motion  abide  the  event  of  the  suit. 

JOHN  VAN  BUREN,  plaintiff's  counsel. 

VAN  BUREN  &  OSTRANDER,  plaintiff"1  s  attorneys. 

A.  CRIST,  defendants'  counsel  and  attorney. 

BEARDSLEY  Justice.    Granted  the  motion,  without  costs. 


ALBERT  T.  DUNHAM  agt.  JOHN  VAN  ARNUM. 

A  defendant  will  be  let  in  to  plead  and  defend  on  terms,  after  judgment,  where 
it  appears  he  made  a  mistake  in  the  number  of  days  he  had  to  plead  in,  he 
swearing  to  merits. 

September  Term,  1845. 

MOTION  by  defendant  to  set  aside  default  and  subsequent 
proceedings. 

The  defendant  alleged  that  in  consequence  of  the  word 
"  twenty"  in  the  notice  to  plead,  indorsed  on  the  copy  decla- 
ration served,  being  obliterated,  he  mistook  it  for  "  thirty," 
and  supposed  he  had  thirty  days  to  plead,  not  being  ac- 
quainted with  the  rules  and  practice  of  the  court.  It  was  his 
intention  to  defend  the  suit,  being  an  action  of  assault  and 
battery,  wherein  the  plaintiff  had  executed  a  writ  of  inquiry 
by  default,  and  perfected  judgment  for  $500  damages,  besides 
costs — had  employed  an  attorney,  who  had  applied  to  plain- 
tiff's attorney  to  waive  the  default  on  payment  of  his  taxable 
costs,  and  pleading  issuably,  which  plaintiff's  attorney  de- 
clined doing  on  consulting  his  client,  as  he  said  the  plaintiff 
was  unwilling  to  open  the  default.  Defendant  swore  to 
merits. 

Plaintiff  showed,  that  his  attorney  saw  defendant  a  few 
days  after  judgment,  and  defendant  told  him  the  reason  he 
did  not  plead  was,  that  he  omitted  to  make  a  memorandum 


NE"W-YORS.  PRACTICE  REPORTS.  225 

Lynes  agt.  Noble. 

of  the  time  when  the  declaration  was  served  on  him ;  he 
knew  he  had  twenty  days'  time  to  plead,  but  thought  only 
fifteen  had  expired. 

J.  HOLMES,  defendants  counsel. 

C.  E.  MATHER,  defendants  attorney. 

H.  L.  PALMER,  plaintiff's  counsel  and  attorney. 

BEARDSLEY,  Justice.  Granted  the  motion,  the  defendant 
to  plead  issuably  in  five  days  and  pay  costs  of  default  and 
subsequent  proceedings  including  $7  cost  of  opposing  motion 
within  ten  days  after  retaxation  on  notice. 


^STEPHEN  C.  LYNES  et  al.  agt.  ALPHEUS  NOBLE  et  al.     [*226] 

An  amendment  to  a  bill  of  exceptions  will  be  allowed  on  terms,  where  the  cause 
has  been  submitted  and  decided :  it  appearing  by  such  decision  that  the 
true  state  of  the  cause  could  not  be  ascertained  by  the  bill  of  exceptions  as 
submitted. 

September  Term,  1845. 

MOTION  by  plaintiffs  to  vacate  a  rule  denying  a  new  trial  in 
this  cause  and  for  leave  to  add  the  pleadings  therein  to  the 
bill  of  exceptions. 

The  circuit  judge  on  the  trial  nonsuited  the  plaintiffs,  they 
took  exceptions,  which  were  settled  by  agreement  between 
the  attorneys  for  the  respective  parties.  At  the  last  January 
term  the  cause  was  submitted,  and  a  new  trial  denied  :  no 
opinion  was  given  by  the  court,  but  the  following  indor 
ment  was  made  upon  the  papers  by  Mr.  Justice  JEWETT,  to 
wit,  "  It  does  not  appear  by  the  bill  of  exceptions  what  the 
issue  was,  nor  what  the  parties  tried,"  a  similar  entry  was 
made  in  the  rule  denying  a  new  trial. 

The  plaintiff  moved  that  the  pleadings  be  added  to  the  bill 
of  exceptions,  to  remedy  the  defect. 

The  defendant  insisted  that  the  pleadings  never  form  any 
part  of  a  bill  of  exceptions,  but  the  objection  should  be  s-> 


226  NEW-YORK  PRACTICE  REPORTS. 

Platt  agt.  Burckle. 

stated  and  the  exception  so  taken  as  to  show  what  the  ques- 
tion is,  that  the  plaintiffs'  course  would  be  new  practice,  that 
it  is  too  late  after  argument  and  decision  ;  when  the  bill  of 
exceptions  is  sealed,  both  parties  are  concluded  by  it.  (3  Dal- 
las, 38  ;  Bui  N.  P.  316  ;  Graham's  Practice,  2d.  ed.  328.) 

W.  F.  ALLEN,  plaintiffs1  counsel. 
E.  H.  MARTIN,  plaintiffs1  attorney. 
A.  TABER,  defendants'  counsel. 
N.  BENNETT,  defendants'  attorney. 

BEARDSLEY,  Justice.  Granted  the  motion  on  payment  of 
costs  of  bill  of  exceptions  and  subsequent  proceedings,  and 
seven  dollars  costs  of  opposing  motion. 


JAMES  PLATT  et  al.  agt.  CHRISTIAN  I.  BURCKLE. 
THE  COMMERCIAL  BANK  OF  OSWEGO  agt.  THE  SAME. 

A  delay  of  five  years  in  the  collection  or  return  of  an  execution  by  a  sheriff  who 
has  levied  upon  personal  property,  and  left  it  in  possession  of  defendant, 
held  fatal,  on  a  motion  for  payment  over  of  the  proceeds  of  the  same  property, 
sold  on  an  execution  issued  within  a  few  months.  Such  a  case  is  a  proper 
one  for  a  jury. 

/September  Term,  1845. 

MOTION  by  plaintifls  in  the  first  cause  for  an  order  direct- 
ing the  sheriff  of  Oswego,  to  pay  over  to  them,  on  their  ex- 
ecution, the  moneys  in  his  hands,  collected  in  the  second 
cause. 

Judgment  in  the  first  cause  was  docketed  January 
[*227]  13,  1840,  on  bond  and  warrant  of  attorney.  On  *the 
23d  January,  1840,  an  execution  was  issued  to  the 
sheriff  of  Oswego  county,  who  levied  the  same  within  a  few 
days  thereafter  on  defendant's  personal  property,  and  took  a 
schedule,  and  informed  plaintiff's  attorney  thereof,  and  also 
that  the  property  was  claimed  by  one  Seitz  on  a  mortgage. 


NEW-YORK  PRACTICE  REPORTS.  22 Y 

Young  agt.  Arndt. 

One  Luce  had  previously  levied  on  a  portion  of  the  same 
property,  which  was  also  claimed  by  Seitz  ;  a  writ  of  replevin 
was  brought  by  Seitz  against  Luce,  for  the  property,  which  is 
yet  undetermined ;  which  the  sheriff  gave  as  a  reason  why  he 
left  the  property  in  the  defendant's  possession,  supposing  that 
when  the  replevin  suit  was  decided,  it  would  determine  in 
whom  the  title  of  the  property  belonged.  In  June,  1845,  one 
James  Brown,  who  had  become  assignee  of  the  plaintiff  to  the 
judgment  in  the  second  cause,  issued  an  execution  and  levied 
upon  a  portion  of  the  same  property  levied  upon  in  the  first 
execution,  which  was  sold  at  sheriff's  sale  in  July,  1845. 

The  plaintiffs  in  the  first  cause  elected  to  make  an  applica- 
tion to  this  court  to  have  the  proceeds  applied  on  their  execu- 
tion instead  of  seizing  the  property  in  the  sheriff's  hands  and 
selling.  It  was  admitted  by  the  papers  that  the  property  had 
always  remained  in  the  possession  and  use  of  the  defendant, 
and  was  fully  denied  by  the  plaintiffs  in  the  first  cause,  and 
also  the  sheriff  who  levied  their  execution,  that  any  instruc- 
tion or  direction  was  given  to  delay  the  collection  of  the  exe- 
cution, or  any  consent  that  the  property  might  remain  in  pos- 
session of  the  defendant,  either  directly  or  indirectly. 

"W.  F.  ALLEN",  counsel  moving. 
DUER  &  BABCOCK,  attorneys  moving. 
M.  T.  REYNOLDS,  counsel  opposed. 
J.  BROWN,  attorney  opposed. 

BEARDSLEY,  Justice.  Denied  the  motion  on  the  ground 
that  a  delay  of  five  years  was  too  much ;  it  was  a  proper  case, 
undoubtedly,  for  a  jury. 

Motion  denied,  with  costs. 


JOHN  P.  YOUNG  agt.  PETER  ARNDT. 

An  affidavit  for  motion  to  change  the  venue,  should  state  that  each  and  every 
of  the  witnesses  are  material,  &c.,  and  also  that,  without  whose  testimony  and 
the  testimony  of  each  and  every  of  them  he  cannot  safely  proceed,  &c. 


22*7  NEW-YORK  PRACTICE  REPORTS. 

Sabin  agt.  Ames. 

September  Term,  1845. 

MOTION  by  defendant  to  change  the  venue. 

An  objection  was  taken  to  the  affidavit  upon  which  defend- 
ant moved,  that  it  was  not  repeated  in  the  affidavit  that  "  each, 
and  every"  of  the  witnesses  were  material  to  his  defence,  &c. 
That  part  of  the  affidavit  to  which  objection  was  made,  read 
as  follows  (after  naming  the  witnesses),  "  are  each  and 
[*228]  every  of  *them  material  witnesses  for  this  deponent 
on  the  trial  of  said  cause  as  he  is  advised  by  his  said 
counsel,  and  believes,  without  whose  testimony  and  the  testi- 
mony of  each  of  them  he  cannot  safely  proceed,  &c." 

L.  BENEDICT,  JR.,  defendants  counsel. 
H.  K.  &  L.  W.  JEROME,  defendants  attorneys. 
M.  T.  REYNOLDS,  plaintiff's  counsel. 
SACIA  &  DAVIS,  plaintiff's  attorneys. 

Plaintiff 's  counsel  insisted  that  the  affidavit  should  have 
read ;  "  without  whose  testimony  and  the  testimony  of  each. 
and  every  of  them,  &c."  3  Wend.,  19  Wend. 

BEARDSLEY,  Justice.  The  affidavit  does  not  seem  to  come 
within  the  rule,  in  that  respect. 

Motion  denied,  with  costs,  without  prejudice. 


TIMOTHY  SABIN  agt.  WILLYS  AMES. 

Where  there  is  reason  to  believe  there  has  been  collusion  on  the  part  of  a  de- 
fendant to  keep  back  important  testimony  of  the  plaintiff  at  the  circuit,  motion 
for  judgment  as  in  case  oi  nonsuit  for  not  trying  the  cause,  will  be  denied,  with 
costs. 

September  Term,  1845. 

MOTION  by  defendant  for  judgment  as  in  case  of  nonsuit, 
after  stipulation  to  try  at  the  Delaware  circuit. 

This  was  an  action  for  libel,  the  letter  containing  the  libel, 
was  written  by  Ames,  the  defendant,  in  the  name  of  the  firm 


NEW-YOBK  PRACTICE  REPORTS.  228 

Cluts.  agt.  Parker. 


of  Ames  &  Eood,  to  one  Gilbert ;  the  plaintiff  procured  a  copy 
of  the  letter  from  Gilbert,  and  several  weeks  before  the  circuit 
subpoenaed  Gilbert  with  a  subpoena  duces  tecum  to  produce  the 
original  letter  on  the  trial.  Gilbert  informed  plaintiff  that  the 
letter  had  been  delivered  to  defendant  Ames.  The  plaintiff 
immediately  notified  defendant  and  his  attorney  to  produce 
the  letter  on  the  trial,  or  that  parol  evidence  would  be  given 
of  its  contents.  Plaintiff  then  subpoenaed  his  witnesses  and 
attended  the  circuit  intending  to  try  the  cause.  The  defend- 
ant Ames,  at  the  circuit,  informed  plaintiff  that  previous  to 
his  receiving  notice  to  produce  the  letter  on  the  trial,  his  part- 
ner Eood  took  the  letter  and  refused  to  give  it  up  to  him,  and 
that  Eood  was  then  in  the  city  of  New- York. 

P.  CAGGER,  defendant's  counsel. 
HORACE  DRESSER,  defendant's  attorney. 
E.  W.  PECKHAM,  plaintiff1  's  counsel. 
BOWNE  &  CRIPPEN,  plaintiff's  attorneys. 

Plaintiff  insisted  that  the  change  of  possession  of  the  origi- 
nal letter  was  a  trick  to  avoid  its  production  on  the  trial  at 
the  circuit,  and  in  consequence  thereof,  it  was  too  late  for  him 
to  procure  the  testimony  of  Eood  at  the  circuit,  or  his  refusal 
to  attend,  so  that  parol  evidence  could  be  given  of  its  contents. 

BEARDSLEY,  Justice.  Denied  the  motion,  with  costs,  for 
that  reason. 


*JOHN  D.  CLUTE  agt.  HIRAM  PARKER.      [*229] 

A  motion  made  under  the  new  rules,  on  an  irregularity  which  occurred  under  the 
old  ruleg,  costs  of  the  motion  according  to  the  old  rules  will  be  allowed.  The 
61st  new  rule  does  not  apply  in  such  a  case. 

September  Term,  1845. 

MOTION  by  defendant  to  set  aside  capias  for  irregularity. 

This  was  a  motion  to  set  aside  the  cauias  issued  in  this  cause 


229  NEW-YORK  PRACTICE  REPORTS. 

McDowell  agt.  Appleby. 

on  the  ground  that  it  was  tested  in  the  name  of  Samuel  Nel- 
son, Esq.,  chief  justice,  the  first  Monday  of  May,  1845  ;  where- 
as, at  that  time,  Greene  C.  Bronson,  Esq.,  was  chief  justice, 

L.  BENEDICT,  JR.,  defendant's  counsel. 
T.  J.  GLOVER,  defendants  attorney. 
D.  WRIGHT,  plaintiff's  counsel. 
G.  A.  HALSEY,  plaintiff's  attorney. 

It  was  objected  by  plaintiff's  counsel,  to  payment  of  costs 
of  this  motion,  that  it  was  made  since  the  new  rules  went  into 
operation,  and  was  made  merely  for  the  costs. 

It  was  answered  that  the  writ  was  issued  under  the  old 
rules ;  and  the  error  having  occurred  under  them,  they  should 
govern  as  to  costs :  that  the  61st  new  rule  did  not  apply. 

BEARDSLEY,  Justice.  Decided  that  the  old  rules  must  con- 
trol the  costs,  and  allowed  the  writ  to  be  amended  nunc  pro 
tune,  by  inserting  the  name  of  the  chief  justice;  the  plaintiff 
to  pay  ten  dollars  costs  of  the  motion. 


THOMAS  MCDOWELL  et  al,  plaintiffs  in  error  agt.  LEONARD 
APPLEBY,  defendant  in  error. 

Am  attorney  has  no  lien  for  costs,  for  bringing  a  writ  of  error  where,  in  the  pro- 
gress of  the  writ  of  error,  the  plaintiffs  in  error  settle  the  suit  with  the  attorney 
for  the  defendant  in  error,  and  discharge  the  proceedings ;  the  attorney  subse- 
quently goes  on  and  enters  judgment  for  costs  on  the  writ  of  error,  having  had 
•otice  of  the  settlement  at  the  time  it  was  made.  Judgment  on  the  writ  of  er- 
ror will  be  set  aside  with  costs. 

September  Term,  1845. 

MOTION  by  defendant  in  error  to  set  aside  judgment  and 
subsequent  proceedings  with  costs. 

B.  Manning,  attorney  for  plaintiffs  in  error,  brought  a  writ 
of  error  upon  a  judgment  obtained  against  them  in  the  supe- 
rior court  of  the  city  of  New- York,  on  the  2d  of  October,  1843. 
On  the  4th  of  December  following,  E.  "W.  Stoughton,  attorney 


NEW-YORK  PRACTICE  REPORTS.  229 

McDowell  agt.  Appleby. 

for  defendant  in  error,  received  notice  of  the  bringing  the  writ 
and  filing  the  bond,  &c.,  from  Manning.  On  the  6th  of  the 
same  December,  McDowell  paid  the  judgment  upon  which  the 
writ  of  error  was  brought  to  Appleby,  the  defendant  in  error, 
and  executed  an  agreement  to  pay  all  costs  on  the  writ  of  er- 
ror ;  and  stipulated  that  no  writ  of  error  should  thereafter  be 
brought  on  the  judgment,  either  by  himself  or  the  other  plain- 
tiff in  error.  On  the  29th  of  the  same  December, 
Hunt,  the  other  plaintiff  in  error,  who  was  surety  *for  [*230] 
McDowell  on  the  bond  upon  which  the  judgment 
was  obtained,  gave  his  consent  in  writing  to  the  settlement 
made  by  McDowell,  and  that  no  writ  of  error  should  thereaf- 
ter be  brought  on  the  judgment,  and  requested  a  discontinu- 
ance of  this  writ  of  error ;  at  the  same  time,  Stoughton  exe- 
cuted and  delivered  to  him  a  satisfaction  of  the  judgment 
against  him  and  McDowell.  On  the  21st  of  the  same  Decen- 
ber,  Stoughton  served  on  Manning  copies  of  the  stipulation, 
and  requested  Manning  to  enter  a  rule  to  discontinue  the  suit 
on  the  writ  of  error,  which  Manning  declined  doing  unless  his 
costs  were  paid ;  and  Manning,  on  the  llth  of  June,  1845, 
served  on  Appleby,  defendant  in  error,  a  notice  not  to  pay  the 
costs  to  the  plaintiff  in  error,  as  he  had  a  lien  thereon  to  the 
full  amount.  Manning  went  on  and  entered  judgment  on  the 
writ  of  error  in  May,  1845,  reversing  the  former  judgment 
with  costs. 

JOHN  N.  TAYLOR,  defendant's  counsel. 
E.  W.  STOUGHTON,  defendants  attorney. 
Gr.  J.  E.  BOWDOIN,  plaintiffs'  counsel. 
E.  MANNING,  plaintiffs'  attorney. 

Manning,  attorney  for  plaintiffs,  alleged  that  McDowell  was 
insolvent,  and  that  it  was  a  collusion  between  plaintiffs  in  er- 
ror and  Stoughton,  to  defraud  him  of  his  costs ;  but  insisted 
that  their  agreement  to  discontinue  the  writ  of  error  did  not 
render  the  transaction  valid  as  against  their  attorney's  claim  ; 
that  he  had  notified  Stoughton  he  should  disregard  any  settle- 
ment, unless  his  costs  were  paid. 


230  NEW-YORK  PRACTICE  REPORTS. 

Albert!  agt  Peck. 

BEARDSLEY,  Justice.  The  attorney  had  no  lien  for  costs : 
he  had  nothing  to  have  a  lien  upon  ;  there  was  no  lien.  The 
motion  must  be  granted  with  costs. 

Eule  accordingly. 


EDWIN  E.  ALBERTI  et  al  agt.  DANIEL  E.  PECK,  Impleaded, 

&c. 

A  proper  affidavit  of  merits  must  be  made  for  the  motion,  where  defendant  seeks 
to  be  relieved  on  terms  from  a  default 

September  Term,  1845. 

MOTION  by  defendant  Peck,  to  set  aside  default  and  subse- 
quent proceedings  for  irregularity. 

The  suit  was  brought  19th  February,  1845,  on  an  accept- 
ance, with  notice  that  it  was  the  sole  cause  of  action.  Plain- 
tiffs were  non-residents.  8th  of  March,  defendant  served  order 
requiring  plaintiff  to  file  security  for  costs,  with  stay  of  pro- 
ceedings ;  and  that  defendant  have  thirty  days  from  the  receipt 
of  notice  of  the  filing  security  for  costs,  to  plead.  26th  of 
March,  security  for  costs  filed,  and  notice  thereof  mailed  at 
New-York,  directed  to  defendant's  attorney,  at  Clarkson,  Mon- 
roe county  ;  which  defendant's  attorney  did  not  receive  until 
30th  of  April,  by  reason  of  his  being  absent  from 
[*231]  home.  3d  of  May,  default  was  entered.  Onthe*6th 
of  May,  plea  was  served  without  any  affidavit  of 
merits.  On  the  9th,  an  affidavit  of  merits  was  offered,  which 
was  refused  by  plaintiffs'  attorney,  unless  the  defendant  would 
disclose  the  real  defence  by  which  he  would  abide. 

M.  T.  EEYNOLDS,  defendant's  counsel, 
S.  B.  JEWETT,  defendants  attorney. 
J.  V.  L.  PRUYN,  plaintiffs1  counsel. 
T.  SEDGWICK,  plaintiffs'  attorney. 

There  was  no  affidavit  of  merits  made  for  the  motion,  ac- 
companying the  moving  papers.  Defendant  relied  upon  the 


NEW-YORK  PRACTICE  REPORTS.  231 

Medbury  agt.  The  Butternuts  and  Sherbourne  Turnpike  Company. 

affidavit  of  merits  made  by  the  attorney,  which  was  served 
with  the  plea. 

BEARDSLEY,  Justice.  Denied  the  motion,  on  the  ground 
that  there  was  not  proper  affidavit  of  merits,  nor  any  excuse 
shown  why  one  was  not  made  by  Peck,  the  defendant.  The 
default  was  regular,  and  he  would  have  let  in  the  defendant, 
on  terms,  if  proper  affidavit  had  been  made. 

Motion  denied  with  costs. 


CHARLES  MEDBURY  agt.  THE  BUTTERNUTS  AND  SHERBOURNE 
TURNPIKE  COMPANY. 

Costs  of  witnesses'  fees  attending  the  circuit  in  good  faith,  will  be  taxed  and 
allowed  notwithstanding  the  objection  that  they  are  interested  as  parties  to 
the  suit. 

Where  a  party  moving  for  relaxation  of  costs,  asks  costs  in  his  notice,  he  must 
pay  costs  for  that  reason. 

September  Term,  1845. 

MOTION  by  plaintiff  for  retaxation  of  defendants'  costs. 

This  was  a  motion  made  in  March  last  for  a  retaxation  of 
defendants'  bill  of  costs,  and  was  referred  back  to  the  taxing 
officer  to  retax  it  as  to  witnesses'  fees,  and  to  report  to  the 
next  special  term.  The  objections  were,  that  the  persons 
charged  as  witnesses,  were  interested  in  the  suit,  being  stock- 
holders of  the  turnpike  company. 

It  was  answered  that  the  witnesses  were  material  and  neces- 
sary, and  attended  the  circuit  in  good  faith,  and  would  have 
been  released  on  the  trial  if  objection  had  been  made  to  them 
on  the  -ground  of  interest. 

The  affidavit  of  their  attendance  in  good  faith  was  produced 
to  «the  taxing  officer,  who  allowed  the  fees  of  all  except  one, 
$3.28,  which  was  struck  out  for  the  reason  that  no  affidavit 
of  his  travel  and  attendance  was  produced.  The  plaintiff  in 
his  original  notice  of  motion  asked  for  costs. 


231  NEW-YORK  PRACTICE  REPORTS. 

Goodenow  agt.  Livingston. 

S.  STEVENS,  plaintiff '«  counsel. 
H.  0.  SOUTHWORTH,  plaintiff's  attorney. 
N.  HILL,  JR.,  defendants'  counsel. 
H.  BENNETT,  defendants'  attorney. 

BEARDSLEY,  Justice.     Ordered  that  $3.28   men- 
[*232]     tioned  in  the  report  of  *the  taxing  officer  be  stricken 
from  the  bill  as  originally  taxed,  and  as  the  plaintiff 
in  his  notice  of  motion  asked  for  costs,  ordered  that  he  pay 
seven  dollars  costs  for  opposing  the  motion. 
Rule  accordingly. 


ABRAM  GOODENOW  agt.  VAN  YECHTEN  LIVINGSTON  et  al 

TAXATION  OF  COSTS. — On  a  motion  to  change  the  venue,  where  the  usual  rule  is 
entered,  denied :  the  costs  of  opposing  the  motion  abides  the  event,  and  are 
taxable  in  the  general  costs  of  the  cause. 

Witnesses'  fees  for  attendance  before  a  commissioner  to  take  foreign  testimony 
are  not  allowed ;  the  commissioner  is  not  a  court  or  officer  within  the  mean- 
ing of  the  statute. 

Services  rendered  under  the  act  of  1840,  and  not  taxable  under  that  act,  may 
be  allowed  and  taxed  under  the  amendatory  act  of  1844,  if  the  same  services 
are  provided  for  in  the  act  of  1844,  and  the  costs  are  taxed  since  the  act  of  1844 
was  passed.  (See  the  following  case  appended  in  a  note.) 

September  Term,  1845. 

MOTION  by  defendants  for  retaxation  of  plaintiff's  bill  of 
costs. 

The  bill  of  costs  in  this  cause  was  taxed  fey  "William  Sey- 
mour, Esq.,  supreme  court  commissioner,  Binghamton,  N.  Y., 
on  written  objections  made  by  defendants'  attorneys  to  items 
marked  and  numbered  on  the  copy  bill. 
§  1st.  Copy  narr  for  sheriff  to  return,  .  .  .  $1.25 
§  2d.  Counsel  perusing  and  amending  narr,  (being  special)  2.00 

The  suit  was  commenced  by  declaration  in  March,  1843, 
and  was  insisted  it  was  therefore  not  taxable. 
§  3d.  Draft  interrogatories  under  second  order,       .         .     $2.50 

It  was  objected  there  was  but  one  order.     It  was  answered, 
that  in  consequence  of  defendants'  attorneys  not  settling  the 


NEW-YORK  PRACTICE  REPORTS.  232 

Goodenow  agt.  Livingston. 

first  interrogatories  according  to  agreement,  the  foreign  wit- 
nesses were  procured  at  the  circuit  personally.     Afterwards 
other  witnesses  were  included  in  the  commission,  and  other 
and  different  interrogatories  prepared  and  settled. 
§  4th.  Copy  int.  to  serve,  $1.  Do.  to  attach  to  commission,  $1,  $2.00 

Same  objections  as  last. 

§  5th.  Counsel  perusing  and  amending  2d  interrogatories,  $2.00 

It  was  objected  that  there  was  one  charge  in  the  bill  for  the 
same  thing ;  that  only  one  could  be  allowed ;  that  there  was 
but  one  set  of  interrogatories  used,  and  only  one  commission 
issued.     The  answer  same  as  in  the  3d. 
§  6th.   Obtaining  order  and  stipulation  for  2d  commission,  $2.00 

It  was  objected  it  was  not  taxable,  and  there  was  no  such 
service  rendered.     Same  answer  as  in  3d. 
*§  7th.  The  whole  costs  of  November  circuit,  1844,  (a  few     [*233] 

items  were  struck  out  by  the  taxing  officer)  $31.37 

It  was  objected  that  they  were  not  chargeable  to  defend- 
ants :  the  defendants  were  compelled  to  go  to  the  circuit  by 
plaintiffs,  and  the  cause  was  not  tried  because  plaintiff  did  not 
move  it  on,  and  the  defendants  subsequently  moved  for  judg- 
ment as  in  case  of  nonsuit,  which  was  granted,  with  leave  to 
stipulate,  &c. 
§  8th.  Clerk's  fees  entering  default  .....  $0.25 

It  was  objected,  if  there  was  any  such  service  it  was  irre- 
gular, and  was  opened.     It  was  entered  after  plea  served,  and 
opened  on  motion  without  costs. 
§  9th.  Costs  of  defending  motion  to  change  venue    .         .     $7.00 

It  was  objected,  that  the  motion  was  denied  without  costs. 
It  was  answered,  that  the  rule  merely  said  denied,  without  say- 
ing anything  about  costs ;  that  the  costs  abide  the  event. 
§  10th.  Attendance  of  fourwitnesses  before  commissioner 

two  days  each       .         .        •     .  •        •         •     $4.00 

Travel  of  same  in  New-  York  sixty  miles  each  .      9.60 

$13.60 

It  was  objected  that  the  witnesses  were  examined  on  com- 
mission and  of  course  could  not  have  been  examined  in  this 
state.  There  could  be  no  charge  for  travel,  and  if  there  could 


233  NEW-YORK  PRACTICE  REPORTS. 

Goodenow  agt.  Livingston. 

be,  there  would  be  no  charge  after  the  rates  prescribed  by  the 
laws  of  this  state. 

The  papers  showed  that  the  commission  was  executed  and 
the  witnesses  examined  in  the  city  of  Troy  (without  mention- 
ing the  state.) 

R.  W.  PECKHAM,  defendants'  counsel. 
MATTISON"  &  DOOLITTLE,  defendants'  attorneys. 
P.  CAGGER,  plaintiff's  counsel. 
A.  BIRDSALL,  plaintiff's  attorney. 

BEARDSLEY,  Justice.  Allowed  all  the  items  objected  to, 
except  Nos.  7,  8.  and  10,  which  were  stricken  out  under  the 
objections.  The  2d  item,  counsel  perusing  and  amending 
narr,  was  allowed  upon  the  former  decisions  of.  this  court  (one 
of  •  which  is  appended  in  a  note).  In  No.  10,  it  was  decided 
that  witnesses  attending  before  a  commissioner  to  take  foreign 
testimony  could  not  be  allowed  fees,  as  the  commissioner  was 
not  a  court  or  officer  within  the  meaning  of  the  statute. 

Note. — THOMPSON  agt.  CRIPPEN  AND  ANOTHER.  Where  a  suit  was  commenced  in 
1843,  and  determined  shortly  previous  to  the  amendatory  act  concerning  costs, 
passed  May  4,  1844  (Session  Laws  of  1844,  p.  402)  but  the  prevailing  party  did 
not  tax  his  costs  until  after  the  act  had  taken  effect ;  held,  that  its  provisions 
were  to  control  the  taxation,  though  items  not  allowed  by  the  act  of  1840  were 

thus  rendered  taxable 

[*234]        *Cosis.     This  suit  was  commenced  in  1843,  and  was  determined  in 
favor  of  the  defendants  a  short  time  previous  to  the  act  of  May  4th, 
1844  (Sess.  L.  of  1844,  p.  402,)  but  their  costs  were  taxed  afterwards. 

The  bill  contained  a  charge  for  "  Counsel  attending  prepared  to  try,"  Ac.,  $3 ; 
which  was  objected  to,  but  allowed  by  the  taxing  officer. 

J.  W.  Thompson,  for  the  plaintiff,  now  moved  for  a  relaxation,  insisting  that 
no  counsel  fee  was  allowable  for  a  circuit  at  which  the  cause  was  not  tried.  He 
cited  Iltick,  agt.  Whitney  (4  Hill,  54.) 

N.  Hill,  Jr.,  for  the  defendants,  relied  upon  the  second  section  of  the  act  of 
May  4th,  1844,  which  expressly  allows  a  counsel  fee  for  attending  prepared  to 
try,  &c.  He  contended  that  as  the  taxation  in  the  present  case  took  place  since 
the  passage  of  the  act  mentioned,  its  provisions  were  applicable,  notwithstanding 
the  suit  was  determined  before. 

NELSON,  Chief  Justice.  Decided  that  the  charge  in  question  was  taxable. 
Motion  denied. 


NEW-YORK  PRACTICE  REPORTS.  234 

Fish  agt.  Lyon. 


PHINEAS  C.  FISH  agt.  GEORGE  LYON. 

A  motion  to  amend  declaration  by  changing  the  venue  (where  the  action  is  local) 
will  be  granted  on  terms,  after  issue  joined  and  there  has  been  circuits  passed 
at  which  the  cause  might  have  been  tried. 

September  Term,  1845. 

MOTION  by  plaintiff  for  leave  to  amend  his  declaration  by 
changing  the  venue. 

This  was  a  local  action  (assault  and  battery)  which  arose  in 
the  city  and  county  of  New- York.  The  plaintiff  laid  the 
venue  in  the  county  of  Otsego.  Plea  general  issue. 

B.  W.  PECKHAM,  plaintiff's  counsel. 
W.  H.  OLIN,  plaintiff's  attorney. 
N".  HILL,  JR.,  defendant's  counsel. 
J.  E.  FLANAGAN,  defendant's  attorney. 

The  plaintiff's  attorney  supposed  the  cause  might  be  tried 
in  Otsego  county,  and  there  being  one  important  witness  there, 
he  laid  his  venue  in  that  county,  and  expected  that  if  defend- 
ant's attorney  desired  to  change  the  venue,  he  would  move 
for  that  purpose.  And  also  supposed  that  he  was  bound  to 
demur  to  the  declaration,  as  it  appeared  upon  its  face,  that  the 
action  was  local.  The  plaintiff  not  having  done  either  he 
concluded  the  defendant  intended  to  take  advantage  of  it,  by 
nonsuit  at  the  trial.  Defendant  insisted  that  the  plaintiff 
kaew  the  action  was  local  when  he  commenced  it :  he  should 
have  amended  in  twenty  days.  The  defendant  could  not 
move  to  change  venue  in  local  action.  The  plaintiff  should 
have  moved  in  June,  there  had  been  three  opportunities 
to  try. 

BEARDSLEY,  Justice.  Granted  the  motion,  as  follows  :  de- 
fendant's plea  to  stand,  but  if  he  elect  to  withdraw  it,  he  may 
do  so  and  then  plaintiff  to  pay  costs  of  that  plea,  or  he  may 
plead  any  other  or  additional  plea,  on  verifying  the  necessity 
of  such  plea  to  his  defence  by  affidavit.  Rule  accordingly. 


235  NEW-YORK  PRACTICE  REPORTS. 

Parce  agt.  Halbert. 


[*235]    *ELBRIDGE  Gr.  COBB  agt.  THOMAS  ROBINSON. 

Plaintifif 's  attorney  liable  for  costs,  where  the  plaintiff  is  a  non-resident  and  no 
security  filed. 

September  Term,  1845. 

MOTION  by  defendant  for  an  attachment  against  plaintiff's 
attorney  for  non-payment  of  defendant's  costs  in  this  cause. 

This  was  an  action  commenced  by  bailable  capias,  for  assault 
and  battery  on  board  of  a  vessel  in  1844.  The  defendant  was 
captain,  and  the  plaintiff  a  seaman ;  plaintiff  was  a  resident  of 
the  state  of  Maine.  An  order  was  obtained  that  plaintiff  file 
security  for  costs,  which  was  served  on  plaintiff's  attorney, 
and  not  complied  with.  At  a  special  term  of  this  court  sub- 
sequently, an  absolute  order  for  security  for  costs  was  granted, 
of  which  a  copy  was  served  on  plaintiff's  attorney,  and  not 
complied  with.  At  a  subsequent  special  term  defendant  moved 
for  judgment  of  non  pros,  which  was  granted,  unless  plaintiff 
filed  security  for  costs  in  twenty  days,  and  paid  costs  of  mo- 
tion :  the  conditions  of  which  plaintiff  did  not  comply  with,  and 
judgment  of  non  pros,  was  entered  up  ;  costs  taxed,  served  and 
demanded  of  plaintiff's  attorney,  who  refused  to  pay. 

CYRUS  P.  SMITH,  defendant's  counsel  and  attorney. 
J.  F.  ROBINSON  plaintiff's  counsel  and  attorney. 

BEARDSLEY,  Justice.  Granted  the  motion  that  plaintiff's 
attorney  pay  defendant's  cost  on  demand,  or  that  an  attach- 
ment issue. 


NATHAN  PARCE  agt.  ENOS  S.  HALBERT,  (late)  sheriff  of  Che- 
nango  county. 

An  action  brought  against  a  sheriff,  under  sections  34,  35,  36  and  37,  of  title 
fifth,  chapter  6,  part  3  of  the  Revised  Statutes,  (being  penalty  for  irregular  sale 


NEW-YORK  PRACTICE  REPORTS.  235 

Parce  agt.  Halbert. 

of  real  estate,)  the  declaration  also  combining  counts  for  goods,  wares  and  mer« 
chandise  and  money  counts,  and  the  defendant  obtains  judgment  for  costs ; 
the  plaintiff  is  liable  to  imprisonment  on  a  ca.  sa.  upon  the  judgment 

September  Term,  1845. 

MOTION  by  plaintiff  to  set  aside  ca.  sa.  for  irregularity  and 
to  be  discharged  from  imprisonment. 

The  plaintiff  moved  on  the  ground  that  the  ca.  sa.  purported 
to  have  been  rendered  in  an  action  of  assumpsit,  and  in  an  ac- 
tion founded  upon  contract,  and  therefore  he  was  not  liable  to 
imprisonment.  The  plaintiff  declared  against  the  defendant, 
"  that  defendant  was  indebted  to  the  said  plaintiff  in  the  sum 
of  one  thousand  dollars,  according  to  the  provisions  of  sections 
34,  35,  36  and  37  of  title  5,  chapter  6  and  part  3  of  the  Eevised 
Statutes,  &c.,"  together  with  a  count  for  goods,  wares  and 
merchandise,  and  money  counts.  The  defendant  succeeded 
on  the  trial  and  obtained  judgment  for  costs :  upon  which  a 
ca.  sa.  was  issued,  and  plaintiff  imprisoned.  The  ca. 
sa.  recited  *the  sections  of  the  statute  referred  to,  and  [*236] 
also  that  the  plaintiff  on  the  trial  introduced  proof 
under  that  count,  in  the  declaration,  (being  the  penalty  for 
irregular  sale  of  real  estate.) 

M.  T.  KEYNOLDS,  plaintiff 's  counsel. 
JOHN  WAIT,  plaintiffs  attorney. 
D.  WRIGHT,  defendant's  counsel. 
CHARLES  A.  THORP,  defendant's  attorney. 

BEARDSLEY,  Justice.  Decided  the  proceedings  to  be  regular, 
and  the  plaintiff  liable  to  imprisonment,  under  the  sections  of 
the  statute  upon  which  the  action  was  brought.  Motion  de- 
nied with  costs. 

VOL.  I.  22 


236  NEW-YORK  PRACTICE  REPORTS. 

Day  agt.  Beach. 

ELIJAH  Y.  DAY  et  al  agt.  EZRA  BEACH,  and  another  cause. 

An  appeal  from  taxation  of  costs  should  be  made  before  the  costs,  as  taxed,  are 
paid  and  settled. 

September  Term,  1845. 

MOTION  by  plaintiffs'  attorney  for  retaxation  of  costs  in 
each  cause. 

An  agreement  was  made  between  the  respective  parties  to 
settle  these  causes,  and  one  of  these  conditions  was  to  pay  plain- 
tiffs' attorney  his  taxed  costs  therein.  On  the  taxation  before  the 
taxing  officer,  it  was  objected  that  the  costs  of  November  cir- 
cuit, 1844,  should  not  be  allowed,  for  the  reason  that  plaintiffs' 
attorney  served  his  note  of  issue  on  the  clerk  too  late,  and  the 
causes  were  put  at  the  foot  of  the  calendar  and  not  reached. 

Plaintiffs'  attorney  answered  the  objection  by  showing  that 
although  such  was  the  fact,  the  clerk  had  agreed  to  put  the 
causes  in  their  place  on  the  calendar,  and  informed  the  circuit 
judge  he  should  have  done  so,  if  he  had  not  accidentally  left 
the  notes  of  issue  where  they  were  not  discovered  by  his  clerk, 
who  made  the  calendar,  until  it  was  finished.  The  circuit 
judge  on  motion  of  defendant  refused  to  strike  the  causes  from 
the  calendar ;  and  on  plaintiffs'  motion  refused  to  put  them  in 
their  proper  place,  according  to  the  dates.  The  taxing  officer 
struck  out  the  costs  of  the  November  circuit.  Plaintiffs'  at- 
torney moved  for  a  retaxation  or  to  be  allowed  the  costs  of 
November  circuit.  The  defendants  showed  that  after  the  tax- 
ation they  paid  and  settled  t  he  costs,  as  taxed,  with  plaintiffs' 
attorney,  and  it  was  then  understood  that  it  was  a  full  and 
final  settlement  between  them.  Plaintiffs'  attorney  at  that 
time  not  having  said  anything  about  an  appeal  from  the  taxa- 
tion of  the  costs. 

P.  CAGGER,  plaintiffs'  counsel 

J.  B.  LATHROP,  plain  tiffs'  attorney. 

E.  S.  WARREN,  defendants  counsel  and  attorney. 

BEARDSLEY,  Justice.  Denied  the  motion  on  the  ground 
that  the  costs  were  settled  and  paid  previous  to  the  appeal 
from  taxation. 


NEW-YORK  PRACTICE  REPORTS.  23? 


Ballou  agt.  Vandemark. 


*THEODORE  P.  BALLOU  agt.  ORSON  VANDEMARK,    [*237] 
Impleaded,  &c. 

A  defendant  in  offering  to  pay  oosts  to  have  the  privilege  of  pleading,  must  offer 
to  pay  all  the  costs  plaintiff  is  entitled  to. 

September  Term,  1845. 

MOTION  by  defendant  to  require  plaintiff  to  accept  amended 
pleas  served. 

Action  brought  on  a  promissory  note,  with  notice  it  was 
the  only  cause  of  action,  &c.  Defendant  served  plea  of  non- 
assumpsit,  verified  by  affidavit,  and  two  special  pleas  in  bar, 
concluding  with  a  verification  without  any  affidavit.  The  two 
last-mentioned  pleas  were  returned  by  plaintiff's  attorney  for 
the  reason  they  were  not  verified  by  affidavit,  that  they  were 
true  in  substance  and  matter  of  fact.  Afterwards,  and  after 
the  time  for  pleading  had  expired,  defendant's  attorneys  offered 
to  serve  amended  pleas  in  bar  as  before,  duly  verified,  which 
plaintiff 's  attorney  declined  to  receive  unless  his  costs  of  pre- 
paring for  trial  were  paid  and  defendant's  attorneys  should 
take  short  notice  of  trial.  Defendant's  attorneys  agreed  to 
accept  the  proposition  but  disagreed  as  to  the  amount  of  costs 
plaintiff's  attorney  was  entitled  to.  Plaintiff's  attorney  claim- 
ing the  costs  of  serving  notice  of  trial  and  inquest,  and  proof 
of  such  service,  subpoena  and  two  subpoena  tickets,  copy  plead- 
ings and  brief,  as  having  been  performed  before  the  offer  of 
the  amended  pleas.  Defendant's  attorney  offered  to  pay  notice 
of  trial  and  inquest  only. 

P.  CAGGER,  defendant's  counsel. 
SMITH  &  HOBBY,  defendant's  attorneys. 
E.  "W.  PECKHAM,  plaintiff's  counsel. 
E.  J.  KICHARDSON,  plaintiff's  attorney. 

BEARDSLEY,  Justice.  Ordered,  that  on  payment  of  the 
costs  of  preparing  for  trial  at  the  next  Oneida  circuit,  includ- 
ing brief  and  copy  pleadings  and  costs  of  opposing  motion, 


23Y  NEW-YORK  PRACTICE  REPORTS. 

Goff  agt.  Anderson. 


the  last  pleas  stand  as  well  served  as  of  this  day,  and  the  plain- 
tiffs notice  of  trial  to  stand  as  served,  at  his  election,  notice  of 
such  election  to  be  given  on  the  payment  of  the  costs. 


AMAZIAH  W.  GOFF  agt.  PETER  B.  ANDERSON. 

The  conditions  of  a  rule  for  judgment  as  in  case  of  nonsuit,  unless  the  plaintiff 
stipulate  and  pay  costs,  &c.,  should  be  strictly  complied  with  by  plaintiff  with- 
in twenty  days :  he  can  be  relieved  afterwards,  only  on  terms. 

September  Term,  1845. 

MOTION  by  plaintiff  to  set  aside  judgment  entered  by  de- 
fendant for  judgment  as  in  case  of  nonsuit. 

A  motion  was  made  by  defendant  and  an  order  obtained  at 
special  term  for  judgment  as  in  case  of  nonsuit  unless  plaintiff 
stipulated  and  paid  costs.  The  costs  were  noticed  for  taxa- 
tion and  taxed  on  the  last  day  for  complying  with  the  rule, 
(twenty  days)  both  parties  by  their  attorneys  appeared  on  the 
taxation.  The  next  day  after  taxation,  the  defend- 
[*238]  ant's  attorneys  had  the  general  costs  *of  the  cause 
taxed,  and  judgment  as  in  case  of  nonsuit  perfected. 
The  plaintiff  had  not  then  offered  to  pay  the  interlocutory 
costs,  nor  stipulated  to  try,  or  given  notice  of  appeal  from 
taxation.  On  the  same  day  of  entering  judgment,  and  in  the 
evening  after  the  same  had  been  entered  at  noon,  plaintiff 
served  notice  of  motion  for  retaxation  of  the  interlocutory 
costs,  without  any  stay  of  proceedings;  about  a  week  after- 
wards an  order  to  stay  was  served.  Plaintiff  alleged  he  in- 
tended in  good  faith  to  try  the  cause. 

N.  F.  WARING,  plaintiff 's  counsel  and  attorney. 
N.  HILL,  JR.,  defendant's  counsel. 
GREENE  &  COOPER,  defendants  attorneys. 

BEARDSLEY,  Justice.  Granted  the  motion  on  payment  of 
seven  dollars  costs  of  opposing. 


NEW-YORK  PRACTICE  REPORTS.  288 

Chamberlain  agt.  Gurney. 


JOHN  BAKER,  JR.  agt.  GEORGE  MOUNT. 

Proceedings  on  a  judgment  and  execution  will  be  perpetually  stayed,  against  a 
defendant,  who  has  been  discharged  from  the  debt  under  the  bankrupt  law. 

September  Term,  1845. 

MOTION  by  defendant  to  stay  perpetually  all  proceedings 
on  the  judgment  and  execution  in  this  cause. 

On  the  19th  October,  1842,  defendant  presented  his  petition 
as  a  bankrupt,  and  was  discharged  on  the  20th  February,  1843. 
The  judgment  in  this  cause  was  obtained  against  him  previous 
to  his  discharge,  and  was  included  in  his  petition  as  a  debt 
owing  by  him  at  the  time  of  presenting  his  petition.  The 
plaintiff  issued  an  execution  upon  the  judgment,  last  July, 
which  was  levied  upon  defendant's  personal  property 

N".  HILL,  JR.,  defendant's  counsel 
J.  T.  HUDSON,  defendants  attorney. 
R.  W.  PECKHAM,  plaintiff's  counsel. 
F.  S.  KINNEY,  plaintiff's  attorney. 

BEARDSLEY,  Justice.  Ordered  that  all  proceedings  on  the 
judgment  and  execution  be  perpetually  stayed,  so  far  as  it  re- 
lated to  all  of  defendant's  personal  property,  and  also  as  to  all 
real  estate  acquired  by  him,  since  the  presentation  of  his  peti- 
tion for  a  discharge  under  the  bankrupt  law. 


ELIJAH  CHAMBERLAIN  et  al  agt.  ABRAHAM  G-.  GURNEY  et  al. 

Execution  will  be  perpetually  stayed,  on  motion,  where  defendant  has  been  dis- 
charged from  the  debt  under  the  bankrupt  law. 

September  Term,  1845. 

MOTION  by  defendant  Abraham  G.  Gurney,  for  a  perpetual 
stay  of  execution. 
The  defendant  Abraham  G.  Gurney,  was  discharged  under 


239  NEW-YORK  PRACTICE  REPORTS. 

Carter  agt.  Goodrich. 

the  bankrupt  law,  after  the  judgment  in  this  cause 
[*239]  was  obtained ;  the  plaintiffs  *were  notified  of  his  pro- 
ceedings at  the  time.  In  August  last,  (after  his  dis- 
charge,) an  execution  was  issued  and  levied  upon  his  personal 
property,  acquired  after  his  discharge.  The  plaintiff's  attorney 
stated  that  he  had  no  notice  at  the  time  of  issuing  the  execu- 
tion, that  Abraham  G.  Gurney  had  been  discharged. 

P.  CAGGER,  defendants'  counsel* 
TALLMAN  &  DEAN,  defendants1  attorneys. 
S.  STEVENS,  plaintiffs'  counsel. 
"WM.  MULOCK,  plaintiffs'  attorney. 

BEARDSLET,  Justice.    Granted  the  motion  on  payment  of 
costs  of  opposing. 


JOHN  B.  CARTER  agt.  FRANCIS  GOODRICH. 

A  defendant  will  be  allowed  to  plead  his  bankrupt  discharge,  on  terms,  after  de- 
fault, where  he  delayed  to  plead  it  previous  to  default 

September  Term,  1845. 

MOTION  by  defendant  to  set  aside  default  and  for  permission 
to  plead  his  bankrupt  discharge. 

This  was  an  action  of  debt  on  judgment,  commenced  after 
defendant  had  filed  his  petition  and  pending  the  proceedings 
for  his  discharge.  Defendant's  attorneys  served  on  plaintiff's 
attorney  a  notice,  that  in  case  defendant's  default  was  entered, 
a  motion  would  be  made  on  the  defendant  obtaining  his  dis- 
charge, to  open  the  default  and  set  aside  all  subsequent  pro- 
ceedings on  the  part  of  the  plaintiff  therein  ;  this  notice  was 
served  on  the  23d  of  September,  1843,  Defendant  got  his  dis- 
charge on  the  14th  of  December,  1844 ;  his  default  was  en- 
tered on  the  3d  of  March,  1845,  and  notice  of  assessment  of 
damages  served  for  26th  April,  1845. 

P.  CAGGER,   defendant's  counsel. 

BENEDICT  &  BOARDMAN,  defendants  attorneys. 


NEW-YORK  PRACTICE  REPORTS.  239 

Johnson  agt.  Davis. 

H.  HARRIS,  plaintiffs  counsel. 
K  SAYRE,  plaintiff's  attorney. 

Plaintiff  insisted  that  defendant  having  obtained  his  dis- 
charge more  than  two  months  previous  to  the  default,  he 
should  have  pleaded  it. 

BEARDSLEY,  Justice.  Granted  the  motion  on  payment  of 
the  costs  of  default  and  subsequent  proceedings,  and  costs  of 
opposing  the  motion. 


NAPOLEON  B.  JOHNSON  agt.  HIRAM  DAVIS,  Impleaded,  &c. 

An  affidavit  for  the  purpose  of  moving  for  judgment,  as  in  case  of  nonsuit,  should 
state  where  the  venue  is  laid,  that  the  cause  was  noticed  for  trial,  or  that  it 
was  not  noticed,  and  that  a  circuit  was  held  at  which  it  might  have  been  tried. 

September  Term,  1845. 

MOTION  by  defendant  Davis,  for  judgment  as  in  case  of  non- 
suit 

The  affidavit  upon  which  the  defendant  moved,  did 
not  state  where  the  venue  *was  laid,  nor  that  it  had     [*240] 
been  noticed  for  trial,  nor  that  any  circuit  had  been 
held  at  which  it  might  have  been  tried. 

E.  W.  PECKHAM,  defendant's  counsel. 
JOHN  CLARK,  defendant's  attorney. 
J.  H.  COLLIER,  plaintiff's  counsel. 
G.  M.  BUCKLIN,  plaintiff's  attorney. 

BEARDSLEY,  Justice.    Denied  the  motion  with  costs,  on  the 
ground  of  the  defects  in  the  affidavit. 


240  NEW-YORK  PRACTICE  REPORTS. 

Wright  agt.  Forbes. 


JAMES  WRIGHT  agt.  ENOCH  FORBES. 

An  objection  to  receiving  a  plea  and  notice  should  be  immediately  communicated 
to  the  opposing  attorney,  after  it  is  received,  or  should  be  returned  immediately ; 
a  delay  of  two  months  without  any  objection  being  made  will  be  constructed 
as  an  acceptance. 

September  Term,  1845. 

MOTION  by  defendant  requiring  plaintiff's  attorney  to  accept 
amended  plea  and  notice. 

The  last  day  for  pleading  expired  on  the  1st  of  May,  under 
an  order  procured  by  defendant  extending  the  time  to  plead, 
and  for  a  bill  of  particulars  from  plaintiff.  Plaintiff  served 
bill  of  particulars  on  the  37th  of  April.  Defendant's  attorney 
had  not  time  to  advise  with  his  client,  (who  was  then  absent,) 
nor  time  to  procure  another  order  extending  time  to  plead  ; 
he,  however,  drew  up  a  plea  and  notice  according  to  the 
knowledge  of  the  facts  in  the  case  which,  he  possessed,  and 
served  them  on  the  last  day  for  pleading ;  subsequently  on  ad- 
vising with  his  client,  he  discovered  a  necessity  for  amending 
his  plea  and  notice,  he  thereupon  prepared  an  amended  plea 
and  notice,  and  sent  it  to  plaintiff's  attorney,  on  the  31st  May, 
with  a  request  that  he  would  waive  any  irregularity  and  re- 
ceive it,  and  that  if  he  had  any  objections  to  doing  so  would 
write  him  before  taking  any  farther  steps.  Defendant's  attor- 
ney received  no  communication  from  plaintiff 's  attorney  on 
the  subject  until  the  14th  of  August  thereafter,  when  he  was 
served  with  notice  of  trial  and  inquest,  with  a  note  accompany- 
ing it,  that  plaintiff's  attorney  could  not  accept  the  last  plea 
and  notice  sent  him. 

A.  TABER,  defendants  counsel 
M.  TAGGART,  defendants  attorney. 
J.  H.  COLLIER,  plaintiff's  counsel. 
N.  FOOTE,  plaintiff's  attorney. 

BEARDSLEY,  Justice.  Granted  the  motion  with  costs,  on  the 
ground  that  plaintiff 's  attorney  did  not  inform  defendant's  at- 


NEW-YORK  PRACTICE  REPORTS.  240 

The  People  agt.  Stevens. 

torney,  that  he  had  objections  to  receiving  the  amended  plea 
and  notice,  until  more  than  two  months  after  he  had  received 
it,  and  in  the  meantime  retained  it. 


*THE  PEOPLE  agt.  NORMAN  D.  STEVENS,  Adm'r,  et  al.     [*241] 

A  motion  to  quash  an  appeal,  from  the  decision  of  a  circuit  judge  for  defects  in 
the  appeal  bond,  should  show  upon  the  papers  the  defects  and  particularly 
pecify  the  objections  relied  on. 

September  Term,  1845. 

MOTION  by  plaintiffs  to  quash  appeal  from  the  decision  of 
circuit  judge. 

THE  SAME  agt  THE  SAME. 

MOTION  by  plaintiffs  for  general  costs  in  the  cause. 

The  plaintiffs'  counsel  stated  that  he  moved  in  the  first 
cause  to  quash  the  appeal,  upon  the  ground  that  the  bond 
given  was  defective,  and  not  according  to  the  statute ;  the 
penalty  was  $150,  the  statute  required  it  to  be  in  the  penalty 
of  $200. 

Defendants'  counsel  objected  to  the  motion  for  the  reason 
that  it  was  not  specified  in  the  moving  papers,  or  notice  of 
motion,  what  the  objection  was,  on  which  plaintiff  relied,  and 
died  1  Hill,  216. 

The  motion  in  the  second  cause  followed  the  decision  in  the 
first.  If  there  was  no  appeal,  then  it  was  insisted  plaintiffs 
were  entitled  to  costs. 

J.  NEWLAND,  plaintiffs'  counsel. 
R.  B.  MONELL,  plaintiffs'  attorney. 
J.  H.  COLLIER,  defendants'  counsel. 
W.  M.  PATTERSON,  defendants'1  attorney. 

BEARDSLEY,  Justice.  Denied  the  first  motion  without  costs, 
and  without  prejudice,  with  leave  to  defendant  to  amend  his 
bond  within  twenty  days.  The  second  was  denied  without 
costs  and  without  prejudice. 


241  NEW-YORK  PRACTICE  REPORTS. 

Smith  agt.  Hunt.  , 

In  the  first  case  it  was  held  that  the  moving  papers  should 
specify  the  objections  relied  on,  and  inasmuch  as  the  first  mo- 
tion was  irregular,  and  the  second  regular,  the  judge  balanced 
the  decisions  as  stated. 


WILLIAM  SMITH  agt.  ASA  HUNT,  JR. 

"Where  plaintiff  directed  a  deputy  sheriff  to  settle  an  execution  with  defendant, 
by  taking  certain  property,  if  he  could  not  do  any  better,  and  saying  to  him, 
"  I  submit  all  to  your  judgment  and  management,  and  will  abide  by  what  you 
do,  only  do  not  let  them  deceive  you,"  and  afterwards  moved  to  set  aside  the 
return  of  satisfaction  on  the  execution,  on  the  ground  of  collusion  between  the 
deputy  sheriff  and  defendant,  and  that  the  property  was  valueless :  Held,  that 
the  deputy  sheriff  had  authority,  and  in  the  absence  of  fraud  shown,  the  settle- 
ment was  valid. 

September  Term,  1845. 

MOTION  by  plaintiff  to  set  aside  return  of  satisfaction  on  fi. 
fa.,  and  for  leave  to  issue  another. 

The  judgment  in  this  cause  was  obtained  against  defendant 
in  September,  1844,  for  $212.47.  Plaintiff  resided  at  Water- 
town,  Jefferson  county ;  the  defendant  at  Gouverneur,  in  the 
same  county,  about  thirty  miles  distant.  Execution  was  issued 
and  put  into  the  hands  of  Josiah  Waid,  deputy  sheriff, 
[*242]  residing  at  Gouverneur.  In  November  *following, 
one  Khoades  called  upon  plaintiff  and  represented  to 
him  that  Hunt,  the  defendant,  was  probably  insolvent ;  that 
Hunt  owned  a  lot  of  land  near  Gouverneur  (about  six  or  seven 
miles  distant),  of  about  fifty-four  acres,  which  he  would  prob- 
ably give  in  payment  of  the  judgment,  and  advised  plaintiff 
to  take  it.  Plaintiff,  being  ignorant  of  the  state  of  his  affairs, 
and  being  personally  acquainted  with  Waid,  the  deputy  sher- 
iff, wrote  a  letter  to  Waid,  giving  him  the  information  in  sub- 
stance he  had  received  from  Rhoades,  and  requested  he  would 
take  the  land  (if  he  could  not  do  any  better),  at  the  appraisal 
of  Messrs.  Dodge  and  Anthony,  and  closed  by  saying,  "  I  sub- 
mit all  to  your  judgment  and  management^  and  will  abide  by 


NEW-YORK  PRACTICE  REPORTS.  242 

Smith  agt.  Hunt. 

what  you  do,  only  do  not  let  them  deceive  you."  Dodge  and 
Anthony  declined  being  appraisers ;  Waid  and  the  defendant 
Hunt  then  agreed  upon  John  Bolton  and  Peleg  Chamberlain, 
who  appraised  the  land  at  $4.62f  per  acre.  Waid  declined 
to  receive  it  at  that  price,  and  Hunt  agreed  to  reduce  it  to  $4 
per  acre.  Waid  accepted  the  land  at  that  price,  took  a  deed 
of  it  for  plaintiff,  discharged  the  execution,  and  so  informed 
•plaintiff.  Plaintiff  afterwards  learned  from  reports  that  it  was 
doubtful  whether  the  land  was  of  any  value,  more  than  merely 
nominal,  and  procured  an  investigation  by  individuals,  who 
stated  that  they  considered  the  land  valueless,  except  a  nomi- 
nal value. 

The  defendant  showed  that  land  in  the  vicinity  was  sold 
and  valued  from  four  to  six  dollars  per  acre ;  that  the  ap- 
praisers were  fair  men,  and  understood  the  valuation  of  prop- 
erty in  that  neighborhood,  one  of  them  having  been  an  asses- 
sor for  the  town. 

K.  W.  PECKHAM,  plaintiff's  counsel, 
JOHN  CLARKE,  plaintiff's  attorney. 
J.  H.  COLLIER,  defendant's  counsel. 
CHARLES  ANTHONY,  defendant's  attorney. 

Plaintiff  insisted  that  there  was  collusion  between  Waid,  the 
deputy  sheriff,  and  Hunt,  the  defendant,  to  have  the  property 
satisfy  the  judgment ;  that  Ehoades,  the  man  who  called  on 
plaintiff  first  in  relation  to  it,  was  sent  there  by  Waid  and  Hunt 
for  that  purpose,  and  denied  that  Waid  had  sufficient  authority 
from  plaintiff  to  bind  him  to  the  arrangement  made. 

Defendant  insisted  that  Waid  had  full  authority  from  the 
letter  written  by  plaintiff  to  him,  to  make  the  arrangement, 
and  that  it  was  done  in  good  faith. 

BEARDSLEY,  Justice.  Held,  that  Waid's  authority  was  suf- 
ficient to  settle  the  judgment  in  that  way,  and  there  was  noth- 
ing appeared  in  the  papers  to  show  fraud  in  the  transaction. 

Motion  denied,  with  costs. 


243  NEW-YORK  PRACTICE  REPORTS. 

The  People  agt.  Crosby. 


[*243]    *THE  PEOPLE  ex  rel  GEORGE  GEORNER,  JR.  agt. 
ELISHA  0.  CROSBY,  one  of  the  attorneys,  &c. 

Where  an  attorney  of  this  court  collected  several  demands  before  a  justice  of 
the  peace,  each  demand  being  less  than  $50,  and  on  motion  for  an  attachment 
to  compel  the  attorney  to  pay  over  about  $140,  claimed  to  be  due  from  the 

'  demands  thus  collected  by  him :  Jidd,  that  the  separate  demands  being  less 
than  $50,  this  court  had  not  jurisdiction. 

September  Term,  1845. 

MOTION  for  attachment. 

This  was  a  motion  by  relator  for  an  attachment  to  issue 
against  the  defendant,  as  an  attorney  of  this  court,  for  not 
paying  over  moneys  alleged  to  have  been  collected  by  him 
for  relator  after  demand  made.  It  appeared  that  the  demands 
left  with  the  defendant  by  the  relator  for  collection,  were  small, 
and  were  sued  before  a  justice  of  the  peace ;  no  one  of  them 
exceeded  $50 ;  the  relator  claimed  about  $140  due  him  from 
defendant.  The  defendant  showed  that  when  he  collected 
money  for  relator  from  the  demands  left  with  him,  he  also 
paid  out  the  amount  in  settling  bills  against  the  relator,  which 
relator  had  given  defendant  authority  and  requested  him  to 
do,  as  relator  had  left  the  place  where  he  had  been  doing 
business,  and  was  then  engaged  in  business  in  another  part  of 
the  state. 

J.  H.  COLLIER,  relatorjs  counsel. 
THURSTON  &  WISNER,  relator 's  attorneys. 
S.  STEVENS,  defendant's  counsel. 
E.  O.  CROSBY,  attorney  in  person. 

BEARDSLEY,  Justice.  Without  going  fully  into  the  merits 
of  the  case,  denied  the  motien  with  costs,  on  the  ground  that 
the  demands  separately,  being  under  $50,  this  court  had  not 
jurisdiction,  although  in  the  aggregate  they  may  have  ex- 
ceeded that  sum. 


NEW-YORK  PEACTICE  REPORTS.  243 

Stillman  agt.  "Whitney. 


ROBINS  STILLMAN  agt.  JOSEPH  L.  WHITNEY,  administrator,  &c. 

Plaintiff's  attorney  cannot  disregard  a  plea  and  notice  which  is  defective,  after 
he  has  admitted  service  of  it  for  a  week  or  more,  although  he  told  defendant's 
attorney  at  the  tune  it  was  served  he  thought  it  bad :  he  should  have  imme- 
diately returned  it,  or  given  notice  it  would  be  disregarded. 

i 

September  Term,  1845. 

MOTION  to  set  aside  default  and  subsequent  proceedings  for 
irregularity  with  costs. 

The  time  to  plead  expired  on  the  7th  May.  Defendant  sent 
a  plea  and  notice  to  an  individual  residing  at  the  same  place 
•with  plaintiff's  attorney  two  days  previous  to  the  7th,  but  in 
consequence  of  the  individual  being  absent  from  home  it  was 
not  served  until  the  10th  May.  Default  was  entered  on  the 
7th.  Defendant's  attorney  then  called  on  plaintiff's  attorney 
and  requested  him  to  waive  the  default  and  receive  the  plea 
and  notice  on  payment  of  costs ;  which  plaintiff's 
attorney  *agreed  to.  The  amount  of  costs  was  paid,  [*244j 
and  plaintiff's  attorney  signed  a  stipulation  by  which 
he  agreed  to  open  and  set  aside  the  default  and  subsequent 
proceedings,  and  give  defendant  two  days  to  plead ;  defend- 
ant's attorney  in  the  meantime  got  the  original  plea  and  notice 
he  had  before  sent,  and  served  it  on  plaintiff's  attorney,  and 
requested  him  to  admit  service ;  plaintiff's  attorney  hesitated 
for  the  reason  that  the  plea  was  not  sworn  to,  but  an  affidavit 
accompanied  the  notice,  that  it  was  true  in  substance  and  mat- 
ter of  fact.  Defendant's  attorney  also  served  a  general  affida- 
vit of  merits,  and  told  plaintiff's  attorney  he  thought  it  would 
be  his  duty  to  return  the  plea  and  notice  immediately,  if  he 
had  any  objection  to  it.  Plaintiff's  attorney,  finally  duly  ad- 
mitted service  of  the  plea  and  notice  on  the  24th  May.  De- 
fendant's attorney  heard  nothing  farther  from  plaintiff's 
attorney  until  the  31st  May,  when  he  told  defendant's  attor- 
ney he  had  treated  his  plea  and  notice  as  a  nullity,  and  had 
on  the  29th  May  entered  defendant's  default  again. 


244  NEW-YORK  PRACTICE  REPORTS. 

Smith  agt  Bradley. 

"W.  BROOKS,  defendants  counsel  and  attorney. 
A .  B.  HAMILTON,  plaintiffs  counsel  and  attorney. 

BEARDSLEY,  Justice.  Granted  the  motion  on  the  ground, 
that  plaintiff's  attorney  had  admitted  the  service  of  the  plea, 
and  did  not  return  it,  although  he  had  informed  defendant's 
attorney,  when  it  was  served,  he  thought  it  bad,  but  gave  him 
no  notice  that  he  should  disregard  it  until  he  had  entered  his 
default  some  six  or  seven  days  afterwards.  Motion  granted, 
costs  to  abide  the  event. 


ERASTUS  SMITH  agt.  ORRIN  BRADLEY. 

A  declaration  should  conform  strictly  to  the  ac  etiam  clause  of  the  capias. 

September  Term,  1845. 

MOTION  to  set  aside  declaration  and  subsequent  proceedings 
for  irregularity. 

This  suit  was  commenced  by  capias ;  the  ac  etiam  clause 
was  trespass.  The  plaintiff  in  his  declaration  declared  in  tres- 
pass on  the  case.  The  action,  was  an  action  on  the  case,  for  the 
seduction  of  the  plaintiff's  daughter.  Plaintiff 's  attorney 
supposed  that  by  omitting  to  state  in  the  ac  etiam  of  the  writ, 
that  the  action  was  intended  to  be  trespass,  and  by  not  alleg- 
ing the  acts  to  have  been  done  "  vi  et  armis"  or  "  contra  pa- 
cem"  that  both  the  form  and  substance  of  the  writ  would  be 
in  an  action  on  the  case,  and  not  in  trespass ;  and  that  the 
declaration  might  be  drawn  accordingly,  he  intended  to  in- 
clude in  the  declaration  the  identical  cause  of  action  set  forth 
in  the  writ  and  no  other. 

After  the  motion  papers  were  served,  plaintiff's  attorney 
offered  to  pay  defendant's  attorney  costs  of  preparing 
[*245]  for  the  motion,  if  he  would  *permit  him  to  amend 
the  ac  etiam  clause  of  the  capias  to  conform  to  the 
declaration.  Defendant's  attorney  declined  to  do  it,  and  in- 
sisted plaintiff's  attorney  should  discontinue  the  suit. 


NEW-YORK  PRACTICE  REPORTS.  245 

Bliss  agt.  Treadway. 

P.  CAGGER,  defendant 's  counsel. 

E.  G.  LAPHAM,  defendant's  attorney. 

S.  STEVENS,  plaintiff's  counsel. 

S.  Y.  E.  MALLORY,  plaintiffs  attorney. 

BEARDSLEY,  Justice.  Granted  the  motion,  unless  the  plain- 
tiff amend  his  declaration  in  twenty  days,  by  declaring  in  tres- 
pass,  and  that  plaintiff  pay  costs  of  the  motion. 


LUTHER  BLISS  agt.  HOSEA  TREADWAY,  Impleaded,  &c. 

Diligence  is  required  of  a  defendant  who  moves  to  be  let  in  to  defend  on  the 
merits — a  delay  of  two  years  is  too  much. 

September  Term,  1845. 

MOTION  by  defendant  to  set  aside  default  and  subsequent 
proceedings,  and  for  leave  to  be  let  in  to  defend. 

The  declaration  in  this  cause  was  drawn  by  the  name  of 
Horace  Treadway  instead  of  Hosea  Treadway.  It  was  served 
on  Hosea  Treadway,  as  one  of  the  firm  of  H.  &  T.  J.  Tread- 
way,  in  December,  1842,  and  also  served  on  Thomas  J.  Tread- 
way,  the  other  member  of  the  firm.  Hosea  Treadway  did  not 
plead  in  the  suit,  for  the  reason  that  he  supposed  a  declaration 
served  on  him  by  the  name  of  Horace  Treadway,  and  judg- 
ment obtained  thereon,  would  not  bind  his  property.  He  al- 
leged that  the  note  upon  which  the  suit  was  brought,  was  in- 
dorsed in  the  name  of  the  firm  by  his  partner,  without  his 
knowledge,  and  for  the  sole  benefit  of  one  Joseph  "Weed,  the 
maker,  and  swore  to  merits  generally.  He  first  learned  in 
July  last,  that  the  property  of  the  firm  of  H.  &  T.  J.  Treadway 
had  been  levied  on  and  advertised  for  sale. 

E.  PEARSON,  defendants  counsel. 
G.  E.  ANDREWS,  defendants  attorney. 
P.  CAGGER,  plaintiff's  counsel. 
C.  L.  TRACY,  plaintiff's  attorney. 

BEARDSLEY,  Justice.  Denied  the  motion  with  costs,  on  the 
ground  of  delay. 


245  NEW-YORK  PRACTICE  REPORTS. 

Doty  agt.  Brown. 


WILLIAM  E.  DOTY  agt.  EOSWELL  S.  BROWN. 

A  new  or  additional  bond  for  security  for  costs  in  an  action  of  replevin,  will  not 
be  allowed  where  it  appears  the  bond  required  by  statute  has  been  given,  al- 
though the  costs  already  incurred,  exceed  the  penalty  of  the  replevin  bond. 

September  Term,  1845. 

MOTION  by  defendant  that  plaintiff  give  a  bond  with  sureties 

in  the  penal  sum  of  $200,  conditioned  to  pay  all  costs  which 

should  be  adjudged  against  him  on  his  motion  for  a  new  trial. 

This  was  an  action  of  replevin,  tried  at  Chenango 

[*246]     circuit,  in  August  last ;  the  jury  found  for  the  *de- 

fendant,  and  assessed  the  value  of  the  property  re- 

plevied  at  $150,  and  the  damages  for  detention  at  $16.62. 

The  defendant  was  sued  as  a  public  officer,  of  which  fact  the 

circuit  judge  gave  a  certificate.     The  replevin  bond  executed 

to  the  sheriff  was  in  the  penalty  of  $300. 

Defendant's  attorney  stated  that  the  taxable  costs  already 
amounted  to  over  $150.  On  the  9th  August,  an  order  was 
obtained  by  plaintiff  from  circuit  judge,  which  granted  ninety 
days  to  make  a  bill  of  exceptions,  and  the  same  time  to  pro- 
pose amendments,  and  that  the  cause  be  carried  directly  to  this 
court,  without  being  first  argued  before  the  circuit  judge. 

J.  H.  COLLIER,  defendant's  counsel. 
E.  BALCOM,  defendant 's  attorney. 
P.  CAGGER,  plaintiff's  counsel. 
DANIEL  GRAY,  plaintiff's  attorney. 

BEARDSLEY,  Justice.  Denied  the  motion  with  costs,  on  the 
ground  that  the  plaintiff  had  already  given  the  bond  which  the 
statute  required ;  if  it  did  not  secure  defendant's  costs,  it  must 
be  his  misfortune. 


NEW-YORK  PRACTICE  REPORTS.  246 

Arnold  agt.  Thomas. 


OLIVER  ARNOLD  agt.  BENJAMIN  THOMAS. 

An  affidavit  to  hold  to  bail  in  an  action  of  trover,  should  state  facts  which  show  a 
conversion. 

But  an  affidavit  to  hold  to  bail  in  an  action  of  trover  is  not  necessary ;  the  plain- 
tiff can  hold  to  bail  of  course,  and  defendant  must  apply  to  mitigate  the  amount 

or  discharge  on  common  baiL 

• 

September  Term,  1845. 

MOTION  by  defendant  to  vacate  an  order  to  hold  bail. 

This  was  an  action  of  trover ;  the  affidavit  to  hold  defend- 
ant to  bail,  is  as  follows :  (title  of  the  cause,)  "  Cortland 
county,  ss.  Oliver  Arnold  of  Homer,  being  duly  sworn,  says, 
that  Benjamin  Thomas,  the  above  named  defendant,  has  posses- 
sed himself  of  divers  goods,  wares  and  chattels  of  the  deponent, 
of  the  value  of  five  hundred  dollars,  which  he  has  refused  to 
deliver  to  this  deponent,  and  has  converted  the  same  to  his 
own  use." 

Upon  this  affidavit,  the  defendant  was  held  to  bail  by  a  su- 
preme court  commissioner. 

M.  T.  REYNOLDS,  defendant's  counsel. 
J.  H.  THOMAS,  defendants  attorney. 
S.  STEVENS,  plaintiffs  counsel. 
I.  A.  GATES,  plaintiff 's  attorney. 

It  was  insisted  by  defendant,  that  the  affidavit  was  insuffi- 
cient, for  the  reason  that  theyocte  stated  in  it  did  not  show  a 
conversion  ;  the  defendant  might  have  hired  the  property  from 
plaintiff. 

BEARDSLEY,  Justice.  Held  the  affidavit  insufficient,  for 
the  reason  mentioned,  and  decided  that  no  order  was  ne- 
cessary ;  that  plaintiff  could  hold  to  bail  of  course,  and  de- 
fendant must  apply  to  mitigate  the  amount  or  discharge  on 
common  bail.  Order  to  hold  bail  vacated,  without  costs. 

YOL.  I.  23 


247  NEW-YORK  PRACTICE  REPORTS. 

Tomlinson  agt.  Willey. 


[*247]    *JOHN  H.  TOMLINSON  et  al  agt.  ETHAN  A.  WILLEY, 

JR.  et  al. 

There  can  be  no  recovery  under  the  money  counts  against  a  surety  where  his 
character  appears  on  the  face  of  the  note.  The  surety  must  be  declared 
against  specially.  (See  decision  at  May  term,  1845,  in  the  case  of  Sutler  agt. 
Sawson,  impkaded  with  Butler.) 

September  Term,  1845. 

MOTION  by  plaintiff  to  be  allowed  to  amend  the  declaration 
in  this  cause  by  adding  to  the  common  money  counts,  a  special 
count  upon  the  note,  a  copy  of  which  was  subjoined  to  the 
declaration. 

This  suit  was  commenced  by  declaration,  containing  the 
common  money  counts,  with  copy  note  subjoined,  signed 
"  Ethan  A.  Willey,  Jr.,"  "  B.  B.  Willey  for  security,"  with 
a  notice  that  it  was  the  only  cause  of  action ;  declaration 
served  on  both  defendants.  B.  B.  Willey  appeared  by  at- 
torney and  pleaded.  After  plaintiff's  attorney  had  received 
the  plea,  he  learned  for  the  first  time,  that  this  court  in  May 
term  last,  made  a  decision  to  the  effect,  that  there  can  be  no 
recovery  under  the  money  counts  against  a  surety,  where  his 
character  appears  on  the  face  of  the  note,  that  in  such  case  it 
is  necessary  to  declare  specially. 

S.  WILKESON,  JR.,  plaintiffs1  counsel. 
D.  C.  LE  ROY,  plaintiffs'  attorney. 
N.  HILL,  JR.,  defendants'  counsel. 
P.  Gr.  CLARK,  defendants'  attorney. 

BEARDSLEY,  Justice.  Granted  the  motion,  on  payment  of 
defendants'  costs  and  seven  dollars  costs  of  opposing  the 
motion. 


NEW-YORK  PRACTICE  REPORTS.  247 

Lansing  agt.  Mickles. 


THE  PEOPLE  ex.  rel  HORATIO  G.  ONDERDONK  agt.  EGBERT 

W.  MOTT. 

A  director  or  corporator  has  a  right  at  all  reasonable  times,  to  examine  the  books, 
records  and  papers  of  the  company. 

September  Term,  1845. 

MOTION  for  a  mandamus,  on  notice. 

This  was  a  motion  by  relator,  for  a  mandamus  to  the  de- 
fendant as  secretary  of  the  North  Hempstead  and  Flushing 
Turnpike  Road  and  Bridge  Company,  to  require  him  to  ex- 
hibit to  the  relator,  the  books  and  papers  belonging  to  the 
company.  The  relator  was  a  director  of  the  company,  and  on 
the  14th  June  last,  demanded  by  notice  in  writing  and  person- 
ally, of  defendant  an  examination  of  certain  books  and  papers 
belonging  to  the  company,  which  defendant  refused,  by  reply- 
ing he  preferred  not  to  do  so  at  present,  he  thought  he  had 
good  reasons  for  refusing.  On  further  request  of  relator,  de- 
fendant said  he  would  see  the  president  of  the  company  and 
confer  with  him,  and  produce  the  books  and  papers  on  the 
following  Thursday,  at  a  meeting  of  the  board  of  directors, 
until  which  time,  he  gave  relator  distinctly  to  understand  they 
could  not  be  seen,  and  he  would  not  exhibit  them. 

*M.  T.  REYNOLDS,  relator's  counsel  [*248] 

H.  G.  ONDERDONK,  attorney  in  person. 
D.  GRAHAM,  JR.,  defendants  counsel 
R.  W.  MOTT,  attorney  in  person. 

BEARDSLEY,  Justice.  Decided,  that^a  director,  or  a  corpor- 
ator, had  a  right  at  all  reasonable  times,  to  examine  the  books, 
records  and  papers  of  the  company.  Mandamus  granted. 


JACOB  S.  LANSING  agt.  PHILO  MICKLES. 

An  affidavit  on  which  a  motion  is  founded  for  a  commission,  should  state  that 
the  witness  is  material,  as  he  is  advised  by  his  counsel,  after  stating  his  case,  <fcc- 


248  NEW-YORK  PRACTICE  REPORTS. 

• _  i 

Chappell  agt.  Matteson. 


September  Term,  1845. 

MOTION  by  defendant  for  a  commission. 

It  was  objected  that  the  affidavit  of  defendant  was  defect- 
ive. The  defendant  swore,  u  that  Wm.  S.  Holerbard,  gentle- 
man, of  Winchester,  in  the  state  of  Connecticut,  is  as  deponent 
believes,  a  material  witness  for  deponent  in  this  cause,  &c." 
"And  this  deponent  further  says,  that  he  has  fully  and  fairly 
stated  his  case  in  this  cause  to  John  G.  Forbes  his  counsel, 
who  resides  in  Syracuse,  county  of  Onondaga,  and  disclosed  to 
his  said  counsel  the  facts  which  he  expects  to  prove  by  the 
said  witness,  and  that  without  the  benefit  of  the  testimony  of 
the  said  William  S.  Holerbard,  this  deponent  cannot  safely 
proceed  to  trial  of  this  cause,  as  he  is  advised  by  his  said 
counsel  and  verily  believes ;  and  that  deponent  has  a  good 
and  substantial  defence  on  the  merits,  &c." 

A.  TABER,  defendant's  counsel. 
FORBES  &  SHELDON,  defendants  attorneys. 
M.  T.  KEYNOLDS,  plaintiff's  counsel 
D.  BROWN,  plaintiffs  attorney. 

It  was  insisted  on  the  part  of  the  plaintiff  that  the  affidavit 
did  not  come  within  the  rule ;  it  did  not  state  that  the  witness 
was  matei'ialj  on  the  advice  of  counsel  after  he  had  stated  his 
case^&c. 

BEARDSLEY,  Justice.  Denied  the  motion  with  costs,  and 
without  prejudice,  on  the  defect  mentioned  in  the  affidavit. 


WILLIAM  CHAPPELL  agt.  PELEG  MATTESON. 

On  motion  by  defendant  to  change  the  venue,  and  the  plaintiff  answers  that  a 
default  has  been  entered,  the  defendant  may  have  leave  to  renew  the  motion 
after  the  default  is  disposed  of. 

September  Term,  1845. 

MOTION  by  defendant  to  change  the  venue,  from  Monroe  to 
Jefferson. 


NEW-YORK  PRACTICE  REPORTS.  249 
% 

Tucker  agt.  Black. 

The  plaintiff  showed  that  the  suit  was  brought  on  a  pro- 
missory note  and  not  having  received  a  plea,  on  the 
last  day  for  pleading  he  entered  ^defendant's  default ;     [*249] 
two  days  afterwards  he  received  by  mail  from  defend- 
ant's attorney  (who  resided  at  Watertown,  and  plaintiff's  at- 
torney at  Eochester)  a  plea  postmarked  Watertown,  N.  Y., 
but  on  what  day  it  was  mailed  he  was  unable  to  say,  as  it  was 
very  indistinct ;  and  finding  defect  in  the  affidavit  or  merits 
he  returned  the  plea  to  defendant's  attorney  with  his  objec- 
tions. 

K.  W.  PECKHAM,  defendant's  counsel.  :, 

CHAS.  D.  WRIGHT,  defendant's  attorney. 
P.  CAGGER,  plaintiff's  counsel. 
JAS.  L.  ANGLE,  plaintiff's  attorney. 

BEARDSLEY,  Justice.  Denied  the  motion  with  costs,  and 
without  prejudice  to  defendant's  right  to  renew  the  motion, 
after  the  default  was  disposed  of. 


SAMUEL  A.  TUCKER,  plaintiff  in  error  agt.  JOHN  BLACK,  de- 
fendant in  error. 

Where  a  rule  affirming  a  judgment  was  taken  by  default,  and  the  jnoving  attor- 
ney went  on  and  perfected  his  judgment  under  that  rule,  and  by  an  arrange- 
ment of  counsel,  the  default  was  subsequently  opened,  and  the  cause  finally 
decided  affirming  the  judgment ;  the  moving  attorney,  who  was  ignorant  of 
the  default  being  opened  and  cause  submitted  by  counsel  until  over  a  year  after- 
wards, and  after  he  had  issued  his  execution :  Jield,  on  a  motion  to  set  aside 
the  judgment  for  irregularity,  that  as  the  final  decision  in  the  cause  was  the 
same  as  in  the  rule  entered  by  default,  the  judgment  might  stand. 

September  Term,  1845. 

MOTION  by  plaintiff  in  error  to  set  aside  judgment,  execu- 
tion, &c.,  for  irregularity. 

This  was  a  cause  which  arose  in  justices'  court ;  it  was 
brought  to  this  court  on  a  writ  of  error  to  the  Allegany  com- 


249  NEW-YORK  PRACTICE  REPORTS. 

Heath  agt.  "Wright. 
\ 

mon  pleas.  The  cause  was  noticed  for  argument  at  the  Jan- 
uary term,  1844,  and  papers  sent  to  counsel  at  Albany.  The 
counsel  for  defendant  in  error  took  a  rule  by  default  in  the 
cause  affirming  the  judgment,  on  the  12th  January,  1844,  and 
inclosed  a  copy  to  the  attorney  for  defendant  in  error,  who 
served  a  copy  on  attorney  for  plaintiff  in  error,  and  subse- 
quently served  copy  costs  and  notice  of  taxation,  and  perfected 
judgment  on  the  1st  February,  1844.  Execution  was  not 
issued  until  March,  1845. 

Plaintiff  in  error  showed  that  soon  after  the  rule  for  default 
was  entered,  his  counsel  applied  to  defendant's  counsel  to  open 
it,  which  was  done,  and  the  papers  on  both  sides  submitted  to 
the  court ;  and  the  plaintiff's  counsel  immediately  wrote  plain- 
tiff 's  attorney  that  fact. 

The  cause  was  decided  by  the  court,  at  May  term,  1844. 
"  Judgment  affirmed."  « 

The  attorney  for  defendant  swore  that  he  never  knew  that 
the  rule  taken  by  default  on  the  12th  January,  1844, 
[*250]  had  been  opened,  nor  did  *he  know  anything  of  the 
arrangement  between  the  respective  counsel,  until  af- 
ter he  had  issued  execution  in  the  cause,  and  alleged  that  the 
defendant  in  error  would  be  in  danger  of  losing  the  debt  if 
the  judgment  was  set  aside. 

S.  H.  HAMMOND,  plaintiff'1  s  counsel. 
JAMES  WOOD,  JR.,  plaintiff'1  s  attorney. 
M.  T.  EEYNOLDS,  defendant's  counsel. 
J.  K  STODDARD,  defendant's  attorney. 

BEARDSLEY,  Justice.  Held,  that  as  the  decision  was  the 
same,  in  the  last  rule  as  in  the  one  taken  by  default,  the  judg- 
ment might  stand.  Motion  denied  with  costs. 


CHAUNCY  HEATH  agt.  BENJAMIN  WRIGHT. 

A  writ  of  error  served  after  return  day,  may  be  amended  by  making  it  returnable 
subsequent  to  the  return  day,  on  giving  a  new  bond  and  payment  of  costs. 


NEW-YORK  PRACTICE  REPORTS.  250 

Lawrence  agt.  The  New- Jersey  Railroad  and  Transportation  Company. 

September  Term,  1845. 

MOTION  by  defendant  to  set  aside  writ  of  error. 

The  defendant  moved  on  the  ground  that  the  writ  was  not 
served  on  the  clerk  of  common  pleas  until  after  the  return 
day.  The  writ  was  tested,  first  Monday  of  May,  and  returna- 
ble, first  Monday  in  July;  it  was  served  and  filed,  July  30, 1845. 

D.  BURWELL,  defendant's  counsel. 
B.  WRIGHT,  attorney  in  person. 
M.  T.  REYNOLDS,  plaintiffs  counsel. 
WM.  L.  SHERMAN,  plaintiff's  attorney. 

BEARDSLEY,  Justice.  Denied  the  motion  to  set  aside  the 
writ,  and  allowed  the  plaintiff  to  amend,  so  as  to  make  the  re- 
turn day  of  the  writ  subsequent  to  the  day  when  it  was 
served,  to  wit :  to  test  it  of  July  term,  and  make  it  returnable 
in  October  term,  plaintiff  to  give  a  new  bond,  and  pay  costs  of 
the  motion. 


SAMUEL  T.  LAWRENCE,  JR.,  &c.  agt.  THE  NEW  JERSEY  RAIL- 
ROAD AND  TRANSPORTATION  COMPANY. 

A  suit  against  a  foreign  corporation  cannot  be  commenced  by  original  writ  or 
summons.    Attachment  is  the  only  mode  provided  by  statute. 

September  Term,  1845. 

MOTION  by  defendants  to  quash  the  original  writ  or  sum- 
mons in  this  cause  for  irregularity. 

Defendants  showed  that  they  were  a  corporation  created 
exclusively  under  and  by  the  laws  of  the  state  of  New- Jersey, 
and  their  whole  capital  stock  was  invested  in  a  railroad  and 
its  appurtenances  within  the  state  of  New-Jersey. 

The  original  writ  or  summons  was  served  on  the 
president  of  the  company  *in  the  city  of  New-York,     [*251] 
where  it  was  alleged  the  defendants  had  an  office  for 


251  NEW-YORK  PRACTICE  REPORTS. 

Allen  agt.  Collins^ 

the  transaction  of  business :  the  president's  residence  being  at 
Newark,  New-Jersey. 

A.  TABER,  defendants'  counsel. 
FRANCIS  GRIFFIN,  defendants  attorney. 
P.  CAGGER,  defendants1  counsel 
WM.  GRANDIN,  defendants'  attorney. 

BEARDSLEY,  Justice.  Held,  that  a  suit  against  a  foreign 
corporation  could  not  be  commenced  by  original  writ  or  sum- 
mons. The  statute  prescribed  the  mode,  which  was  by  attach- 
ment. (2  #.  £  459.) 

Motion  granted,  with  costs. 


JUSTUS  ALLEN  et  al  agt.  HOMER  COLLINS  et  al. 

A  plaintiff  in  interest,  being  a  non-resident,  is  required  to  file  security  for  costs, 
where  it  appears  the  plaintiffs  on  the  record  are  insolvent 

September  Term,  1845. 

MOTION  by  defendants  that  security  for  costs  be  filed,  &c. 

The  motion  in  this  case  was  on  the  part  of  the  defendants ; 
that  Alanson  Allen,  the  plaintiff  in  interest,  file  security  for  costs, 
and  that  all  proceedings  on  the  part  of  plaintiff  be  stayed 
until  such  security  be  filed,  &c.  It  appeared  that  the  plain- 
tiffe  on  the  record  had,  prior  to  the  commencement  of  the  ac- 
tion, assigned  the  demand  on  which  the  suit  was  brought,  to 
Alanson  Allen,  a  resident  of  the  state  of  Vermont,  that  the 
suit  was  commenced  by  the  directions  of  the  latter  and  prose- 
cuted for  his  benefit,  and  that  the  plaintiffs  on  the  record  are 
insolvent. 

J.  NEWLAND,  defendants'  counsel. 
DEAN  &  NEWLAND,  defendants1  attorneys. 
S.  STEVENS,  plaintiff's1  counsel. 
C.  STEVENS,  plaintiffs'  attorney. 


NEW-YORK  PRACTICE  REPORTS.  251 

Campbell  agt.  McCormick. 

Defendants  insisted,  that  inasmuch  as  it  is  provided  by  2  R.  S. 
515,  §  47,  that  suits  brought  by  an  assignee  or  person  benefi- 
cially interested  in  the  recovery,  is  liable  for  costs  to  defend- 
ant if  the  suit  fails,  that  the  plaintiff  in  interest  in  this  case, 
being  a  non-resident,  should  file  security  for  costs,  it  being 
shown  that  plaintiffs  on  the  record  are  insolvent. 

BEARDSLEY,  Justice.  Granted  the  motion,  costs  to  abide 
the  event. 


DONALD  CAMPBELL  agt.  LACHLAN  MCCORMICK. 

In  an  affidavit  for  an  order  to  hold  to  bail,  plaintiff  stated  he  believed  from  conver- 
sation with  defendant  he  intended  to  leave  the  country,  &c. ;  Held,  that  the  affi- 
davit was  defective,  in  not  stating  what  the  conversation  was,  or  what  the  de- 
fendant said  as  to  his  leaving  the  country,  &c. 

September  Term,  1845. 

MOTION  by  defendant  to  vacate  an  order  of  supreme  court 
commissioner  and  to  mitigate  bail. 

This  was  an  action  of  slander,  commenced  by 
*capias,  on  which  was  indorsed  an  order  by  a  supreme  [*252] 
court  commissioner  to  hold  defendant  to  bail.  The 
order  was  granted  on  an  affidavit  made  by  plaintiff,  which 
was  alleged  by  defendant  to  be  defective  ;  that  part  of  the  affi- 
davit objected  to  read  as  follows :  "  And  this  deponent  further 
saith  the  said  McCormick  is  worth  little  or  no  means  or  prop- 
erty, that  he  is  engaged  in  no  business,  and  is  intending,  as 
this  deponent  believes,  from  conversation  with  said  McCormick,  to 
leave  the  city  of  Eochester  for  the  province  of  Canada,  for  the 
purpose  of  residing  there." 

F.  M.  HAIGHT,  defendant's  counsel. 
E.  B.  WHEELER,  defendants  attorney. 
A.  TABER,  plaintiff's  counsel. 
GK  F.  DANFORTH,  plaintiff's  attorney. 


252  NEW-YORK  PRACTICE  REPORTS. 

Knowles  agt  Poillon. 

BEARDSLEY,  Justice.  Ordered  that  the  original  order  to 
hold  to  bail  be  set  aside,  and  the  bail  bond  be  delivered  up 
(without  costs)  on  the  ground  that  the  plaintiff  did  not  state 
in  his  affidavit  what  the  conversation  was,  or  what  defendant 
said,  that  the  officer  granting  the  order  might  judge  as  to 
whether  it  afforded  reason  to  believe  defendant  was  about 
leaving  the  county. 


SARAH  KNOWLES  et  al.  agt.  PETER  POILLON  et  al. 

On  motion  for  judgment  as  in  case  of  nonsuit,  where  it  appeared  plaintiff's  coun- 
sel was  actively  engaged  elsewhere  when  the  cause  was  called,  and  defend- 
ant's counsel  was  not  present  at  the  time,  but  the  counsel  on  each  side,  within 
a  few  minutes  after,  appeared  in  court,  and  the  defendant's  counsel  refused  to 
have  the  cause  reinstated,  and  in  answer  to  an  order  to  show  cause  the  next 
day  why  the  cause  should  not  be  reinstated,  gave  as  a  reason  that  one  of  his 
witnesses  was  absent ;  both  parties  in  fact  having  intended  to  try :  Held,  that 
plaintiff  must  stipulate  and  pay  costs. 

September  Term,  1845. 

MOTION  by  defendants  for  judgment  as  in  case  of  nonsuit. 

The  cause  was  on  the  day  calendar  at  New- York  circuit, 
June  13,  1845  ;  both  parties  in  fact  ready  for  trial,  but  their 
counsel  and  attorneys  actually  employed  elsewhere,  and  did 
not  get  into  court  till  after  the  cause  was  called.  Plaintiffs' 
attorney  immediately  requested  defendants'  attorneys  to  con- 
sent to  have  the  cause  reinstated  on  the  calendar.  Defendants' 
attorneys  refused,  and  application  was  on  the  same  day  made 
and  an  order  granted  requiring  defendants  to  show  cause  on 
the  14th  June  (next  day)  why  cause  should  not  be  reinstated. 
Defendants  showed  for  cause,  that  a  material  witness  was  ab- 
sent, and  the  judge  thereupon  refused  to  reinstate.  Plaintiffs 
alleged  in  their  papers  that  this  witness  was  Peter  Poillon,  one 
of  the  defendants,  and  that  he  was  present  when  plaintiffs'  at- 
torney requested  defendants'  attorneys  to  allow  the  cause  to 
be  reinstated,  and  that  he  was  also  present  when  the 
[*253]  order  of  13th  June,  requiring  defendants  *to  show 
cause,  &c.,  was  served  on  defendants'  attorneys. 


NEW-YORK  PRACTICE  REPORTS.  253 

Livingston  agt.  Mclntyre. 

Plaintiffs  also  alleged  they  were  entirely  ready  for  trial,  and 
would  have  tried  if  their  counsel  had  been  in  court.  Poillon 
swore  that  he  left  the  city,  in  pursuance  of  his  previous  ar- 
rangements, as  soon  as  he  ascertained  from  his  attorneys  that 
the  cause  would  not  be  tried,  and  did  not  return  in  a  week 
afterwards. 

E.  W.  PECKHAM,  defendants'  counsel. 
CROMWELL  &  NORTON,  defendants'  attorneys. 
GK  E.  J.  BOWDOIN,  plaintiffs'  counsel. 
A.  Gr.  JONES,  plaintiffs'  attorney. 

BEARDSLET,  Justice.    Granted  the  motion,  unless  plaintiffs 
stipulate  and  pay  costs  of  circuit  and  costs  of  motion. 
Eule  accordingly. 


JOHN  D.  LIVINGSTON  agt.  JOHN  MC!NTYRE  et  cd. 
SAME  agt.  SAME. 

Service  of  papers,  made,  by  unlocking  the  door  and  leaving  the  papers  in  the 
office,  no  one  being  therein,  and  no  leave  shown  to  have  been  given  to  enter 
the  office,  to  make  service.  Held,  not  well  served.  (See  page  199,  Howard's 
Pr.  Rep.) 

It  seems  where  leave  is  granted  by  a  proper  person,  to  unlock  the  door  and  make 
service  of  papers;  it  is  good. 

September  Term,  1845. 

MOTION  by  defendants  to  set  aside  inquests  in  each  cause 
for  irregularity. 

JOHN  D.  LIVINGSTON  agt.  PETER  COMSTOCK  et  al. 
SAME  agt.  SAME. 

MOTION  by  defendants  for  judgment  as  in  case  of  nonsuit 
in  each  cause. 

It  was  objected  that  the  defendant's  papers  in  these  motions 
were  not  properly  served.  It  appeared  that  one  of  defendant's 


253  NEW-YORK  PRACTICE  REPORTS. 

Olmstead  agt.  Jones. 

attorneys  served  the  papers  in  each  of  these  motions,  (which 
was  done  at  the  same  time,)  by  unlocking  the  office  door  of 
plaintiff's  attorney  and  leaving  the  papers  in  his  office,  no  one 
being  in  the  office  at  the  time.  Plaintiff  cited  Howards  Pr. 
Rep.  p.  199. 

E.  CLARK,  defendants'  counsel. 

JOHNSON  &  WATERS,  defendants'  attorneys  in  \st  motion. 

BOYD  &  WILSON,  defendants'  attorneys  in  2d  motion. 

P.  CAGGER,  plaintiff's  counsel. 

WILLIAM  C.  SCHUYLER,  plaintiff's  attorney. 

BEARDSLEY,  Justice.  Papers  not  well  served,  as  it  is  not 
shown  that  there  was  leave  to  enter  the  office  and  make  the 
service.  Motions  denied  with  costs,  without  prejudice. 


[*254]    *CHARLES  S.  OLMSTEAD  et  al  agt.  SETH  C.  JONES, 
Impleaded  with  JOHN  ALLEN. 

Where  plaintiffs  swear  to  more  witnesses  in  the  county  where  the  venue  is  laid 
to  substantiate  their  cause  of  action  particularly  specified,  defendant's  motion 
to  change  venue  will  be  denied. 

September  Term,  1845. 

MOTION  by  defendant  to  change  venue. 

This  was  a  motion  by  defendant  to  change  the  venue  from 
Rensselaer  to  Monroe  on  ten  witnesses  in  Monroe  county. 
The  defendant  stated,  that  the  plaintiff  sought  to  charge  him 
as  a  copartner  of  the  defendant,  John  Allen,  and  as  a  joint 
owner  with  him  of  the  line  of  canal  boats,  called  John  Allen's 
Clinton  Line,  and  to  recover  for  their  services  in  towing  the 
boats  of  said  line  on  the  Erie  canal.  That  one  ground  of  de- 
fence was,  that  defendant  was  not  a  copartner  or  joint  owner 
with  John  Allen  in  the  property  mentioned,  and  not  jointly 
liable  with  John  Allen  nor  otherwise  for  the  demand  of 
plaintiffs. 


NEW-YORK  PRACTICE  REPORTS.  254 

Olmstead  agt.  Jones. 

Plaintiffs  swore  to  fourteen  witnesses  in  Kensselaer  and 
Albany  counties,  which  would  be  material  on  the  trial,  to 
establish  the  joint  liability  of  the  defendants  for  the  services 
charged  in  plaintiffs'  bill  of  particulars. 

J.  EDWARDS,  defendants  counsel. 

S.  MATTHEWS,  defendant's  attorney. 

E.  CLARK,  plaintiffs'  counsel  and  attorney 

BEARDSLEY,  Justice.    There  is  nothing  to  distinguish  this 
from  the  common  cases,  and  the  motion  must  be  denied. 
Rule  accordingly. 


INDEX. 


AME 


PAGE 

INDMENT.    Declaration,  by  changing  venue 5,  234 

Plea  of  bankrupt's  discharge 57 

Declaration,  by  adding  new  counts 61,  247 

Summons  and  declaration  by  changing  action 82 

Declaration  by  striking  out  president's  name  and  title 115 

Bill  of  particulars 172 

Bill  of  exceptions 226 

Writ  of  error 250 

APPEAL.    From  decision  of  circuit  judge 224,  241 

ATTORNEY.    Plaintiffs,  liable  for  costs,  where  plaintiffis  non-resident.101,  235 

Not  liable  for  referee's  fees 105 

"Who  appears  for  a  party  and  is  treated  as  such,  Tidd,  good  on  mo- 
tion to  set  aside  judgment  for  irregularity  in  service  of  process  110 

In  giving  cognovit  defendants  are  bound 128 

Has  a  lien  upon  papers  till  all  his  costs  are  paid 149 

His  lien,  in  case  of  set-off  of  judgments 157 

A  verbal  agreement  between  two,  held,  good  notwithstanding  the 

party  disregarded  it 169 

An  attorney  on  record  the  proper  one  to  make  a  motion 171 

Commencing  a  suit  in  ejectment  must  first  get  written  authority. .  194 
Has  no  lien  for  costs  on  bringing  writ  of  error,  where  suit  is  settled 

by  parties  before  judgment 229 

Attachment  against  for  not  paying  over  moneys 243 

ATTACHMENT.    To  set  aside,  against  an  absconding  or  concealed  debtor    61 

To  set  aside  second  for  irregularity 67 

To  issue  against  assignees  for  refusing  to  pay  defendant's  costs. . .  216 

Against  attorney  for  costs,  plaintiff  non-resident 235 

against  attorney  for  not  paying  over  moneys 243 


256  NEW-YORK  PRACTICE  REPORTS. 

Index. 

PAGE 

JDATL.    To  discharge  defendant  from. 8,  147 

Special,  in  giving  notice,  &c 154 

On  recognizance,  should  be  sued  in  the  original  court,  where  they        » 
all  reside  in  the  county 221 

An  affidavit  to  hold  to  bail  in  an  action  of  trover  not  necessary. . .  246 

BANKRUPT'S  DISCHARGE.    For  leave  to  amend  plea  of 57 

For  leave  to  plead  discharge 96,  99,  210,  239 

Plea  in,  notice  must  be  served  requiring  plaintiff  to  reply 131 

Ca.  sa.  issued  after  discharge,  on  a  judgment  rendered  prior  to. . .  159 
Evidence  of  fraud  should  be  pleaded  specially,  notice  of  it  is  not 

sufficient 169 

Fi.fa.  issued  on  judgment  rendered  before  discharge,  &c 181,  238 

BILL  OF  EXCEPTIONS.    For  leave  to  make  and  serve,  or  case 60 

To  amend .  226 


C 


ALENDAR.    To  strike  cause  from  circuit,  &c 7 

A  motion  to  set  aside  a  sheriff 's  inquisition  on  the  ground  that 
improper  evidence  was  admitted,  is  a  calendar  cause 91 

CAPIAS.     To  vacate  an  order  on,  holding  defendant  to  bail 8 

Ca.  sa.  against  defendant  where  he  had  been  discharged  under 

bankrupt  law 159 

Teste  in  the  name  of  Greene  C.  Branson,  January,  1845,  is  amend- 
able    167 

In  tort,  motion  to  set  aside  declaration  in 192 

To  set  aside  for  irregularity,  tested  wrong 249 

Ca.  sa.  to  set  aside  for  irregularity 235 

Ac  etiam  clause  and  declaration  should  agree 244 

CASE.    For  leave  to  prepare  and  serve. 7,    53 

To  change  into  a  bill  of  exceptions 8,    42 

For  leave  to  make  and  serve,  or  bill  of  exceptions 60 

CERTIORARI.    For  leave  to  make  up  a  record  on .90 

To  quash 121,141,  214 

Motion  for  ex  parte 213 

COMMISSION.    Motionfor 30,  68,  248 

CONSOLIDATE.    Two  causes If  1 


NEW-YORK  PRACTICE  REPORTS.  257 

Index. 

PAGE 

COSTS.     For  retaxation  of.  7,  38,  39,  40,  51,  58,  59,  86,  135, 136, 151,  195,  218, 

231,  232,  236 

For  payment  of  defendant's  costs  of  circuit 197 

For  payment  of  defendant's  costs  of  preparing  for  trial,  &c 66 

In  two  motions  between  the  same  parties,  and  precisely  alike, 

costs  of  motion  in  each  will  be  allowed 92 

Bond  for,  obligors  should  be  bound  to  pay 100 

That  plaintiff's  attorney  pay 101 

That  plaintiff  file  security  for 146 

That  defendant  pay,  in  action  of  replevin 174 

For  full  single  costs  in  action  of  trespass  quare  clausvm  fregit. . . .  180 

For  leave  to  proceed  to  judgment  for  double 185 

To  vacate  or  set  aside  bond  for  security  for 191 

Of  a  precept  ($1)  to  collect  costs,  not  allowed 192 

Rule  for,  on  account  of  defect  in  notice  of  motion 212 

For  attachment  against  assignees  for  refusing  to  pay  defendant's 

costs 216 

A  plaintiff  in  interest  required  to  file  security  for,  where  he  is  a  non- 
resident                                                   .  251 


J-/EBTOR.    Absconding  or  concealed,  moneys  received  as  executor  must 

be  first  paid 207 

DEFAULT,  &c.     To  set  aside  for  irregularity  5,  15,  50,  54,  103,  106,  145,  224, 

230,  243 

To  set  aside  for  not  rejoining  to  replications 11 

To  set  aside,  and  for  permission  to  defend 14,  245 

To  set  aside,  and  stay  proceedings  until  the  decision  of  court  of 

errors 27 

To  open,  taken  at  general  term 41,  43,  52 

To  set  aside,  and  subsequent  proceedings,  42,  55,  63,  73,  87,  136,  225 

To  set  aside,  for  not  declaring,  &c.,  for  irregularity 54 

To  set  aside,  for  not  replying  for  irregularity 6,  173 

DEFECTIVE  PAPERS.     Affidavit  of  merits 45,  62,  68,  166,  230 

Entitling  affidavits 51,  56,  64,  70,  156,  175,  214 

Affidavit  on  motion  to  change  venue,  55,  62,  70,  156,  162,  165,  184, 

195,  227 

Affidavit  of  service  of  papers 97 

In  moving,  where  a  former  rule  had  been  entered,  denied,  without 

prejudice 143 

VOL.  I.  24 


258  NEW-YORK  PRACTICE  REPORTS. 

Index. 

PAGE 

DEFECTIVE  PAPERS.     Notice  of  motion ;  ,'i'; •> .; 191,  212,  218 

Affidavit  on  appeal  from  taxation  of  costs 195 

Affidavit  on  motion  for  judgment  as  in  case  of  nonsuit 239 

Papers  on  appeal  from  circuit  judge 241 

Affidavit  to  hold  to  bail 246,  251 

Affidavit  for  commission 248 

DECLARATION.     Must  be  served,  before  the  actual  adjournment  of  court, 

under  a  rule  to  declare 103 

To  amend,  by  striking  out  president's  name  and  title 115 

To  set  aside  for  irregularity 192,  221,  244 

To  strike  out  the  name  of  one  of  plaintiffs  in  action  of  ejectment. .  194 

To  amend  by  changing  venue 5,  234 

To  amend,  &c.  (see  Amendment) 

Should  conform  strictly  to  the  ac  etiam  clause  of  the  capias 244 

DELAY.    In  setting  aside  default  and  subsequent  proceedings 63,  245 

In  moving  to  change  venue 54,  55,  97 

In  moving  to  amend  plea 93 

In  moving  to  compel  payment  of  costs 105 

In  moving  to  set  aside  writ  of  error 107 

In  moving  to  set  aside  judgment  as  in  case  of  nonsuit 120 

"Will  not  be  regarded  where  irregularity  is  a  matter  of  substance  139, 

143,  224 

In  moving  to  set  aside  judgment  for  irregularity  merely 142 

In  proceeding  to  collect  execution 226 

DEMURRER.    To  set  aside  joinder  in,  &c 67 

DISCONTINUANCE,    to  discontinue  suit 12 

For  judgment  of,  &c 48 

For  leave  to  discontinue  without  costs 122 


E 


[JECTMENT.  Landlord  has  a  right  to  defend  in  name  of  tenant 94 

An  attorney  commencing  must  first  get  a  written  authority 194 

The  statute  regulating  the  commencement  of— does  not  apply  to 

corporation 214 

the  statute  must  be  complied  with  strictly  in  commencing  action 

of 224 

ELECTIONS.    In  regard  to  holding  court  on  election  days 163 


NEW-YORK  PRACTICE  REPORTS.  259 


Index. 


PAGE 

EXECUTION.     To  vacate 10 

To  set  aside,  &c 21,  123 

To  set  aside  for  irregularity 28,  44,  71,  127,  198,  202,  223 

For  a  perpetual  stay,  &c 56,  119,  181,  238 

For  leave  to  issue  a  new  ca.  sa.  or  fi.  fa 117 

For  an  order,  to  collect  moneys  of  co-defendant 158 

"Wrong  indorsement  on 223 

Delay  in  collecting 226 

To  set  aside  return  on  and  for  leave  to  issue  another 

EXECUTOR.    Proceedings  against  as  an  abscondiang  or  concealed  debtor — 
Moneys  received  as  executor  must  first  be  paid 


EIGNED  ISSUE.    On  motion  to  set  aside  judgment  for  usury  and  duress .  202 


I 


NQUEST.     To  set  aside,  &c 23 

To  set  aside 26,  40,  45,  62,  206 

To  set  aside  for  irregularity 68,  106,  201 

IRREGULARITY.     In  entering  default,  &c 5,  50,  152 

In  holding  defendant  to  bail 8 

For  not  assigning  errors  and  in  entering  judgment  of  non  pros. ...  49 

In  entering  default  for  not  replying 66 

In  moving  for  judgment  as  in  case  of  nonsuit 39 

In  not  calling  plaintiff  on  return  of  a  jury  in  action  of  replevin. . .  72 

In  assessment  of  damages 99 

In  entering  judgment 139 

In  moving  for,  merely 142 

In  suing  bail  to  sheriff i 154 

Teste  of  a  writ  in  the  name  of  Greene  C.  Bronson,  January,  1845, 

is  amenable 167 

In  service  of  a  writ  of  nuisance •. 222 


J 


UDGMENT.    To  discharge,  &c 10 

To  vacate  rule  setting  aside  judgment  of  non  pros 12 


260  NEW-YORK  PRACTICE  REPORTS. 

_-^  Index. 

PAGE 

JUDGMENT-     As  in  case  of  nonsuit  after  stipulation 20,  51,  64,  228 

As  in  case  of  nonsuit.  .10,  23,  40,  42,  33,  56,  64,  69,  71,  82,  88,  90,  92, 
95,  102,  103,  118,  131,  132,  169,  172,  173,  184,  193,  252 

For  costs  against  plaintiff  to  set  aside,  &c 46 

To  set  aside,  and  execution 46,  123,  149,  202 

Of  non  pros,  for 48,  79 

Of  non  pros.  &c.,  to  set  aside 49 

For  an  order  to  transfer 60 

To  set  aside 99,  120,  128,  166,  237 

To  set  aside,  for  irregularity 110,  139,  142,  144,  175,  202,  223, 

229,  249 

Allowed  to  enter,  as  of  next  succeeding  term  after  death  of  de- 
fendant   140 

To  set  off,  &c 157 


LANDLORD  AND  TENANT.     Landlord  has  a  right  to  defend  hi  the 

name  of  the  tenant  in  an  action  of  ejectment 94 

For  payment  over  from  sheriff  to  landlord  question  of  levy 220 


I 


ANDAMUS.     For  a  peremptory 75,  77,  80,  106,  114,  196,  247 

Alternative 109,  111,  114,  116,  160,  163,  200 

Notice  of  motion  for,  should  not  ask  for  costs 222 


0 


RDERS.     To  vacate  of  supreme  court  com'r 7,  66 

to  stay  proceedings  beyond  time  for  noticing,  &c 102 

Of  recorder  enlarging  time,  &c 102 

Circuit  judge  has  no  jurisdiction  to  grant  in  certain  cases  during 

session  of  supreme  court 117 

To  vacate  of  circuit  judge 117,  147,  194 


NEW-YORK  PRACTICE  REPORTS.  260 

Index. 

PAGE 

A  ERPETUAL  STAY  OF  PROCEEDINGS.     On  the  part  of  plaintiff 7 

On  the  part  of  defendant 7 

On  execution,  &c 56,  96,  119,  181,  238 

Until  security  for  costs  are  filed 100 

Until  cause  is  decided  in  court  of  errors 177 

PLEAS.     To  set  aside  amended  and  joinder  in  demurrer  for  irregularity. . .  67 

For  leave  to  amend,  &c 93,  169 

Original  affidavit  accompanying,  must  be  served 73,  106 

In  bankruptcy,  notice  to  reply  necessary 131 

To  strike  out  as  false • 162 

Evidence  of  fraud  in  discharge  in  bankruptcy,  cannot  be  given  un- 
der a  notice,  it  should  be  pleaded  specially 169 

To  require  plaintiff  to  accept 237,  /V) 

PRACTICE.     Defendant  has  double  time,  after  admission  of  service  made 

through  the  post-office o 

Costs  ordered  to  be  paid  by  rule  as  conditions,  need  not  be  person 

ally  demanded 9 

In  relation  to  opening  defaults  during  term i7 

Defendant  moving  for  judgment  of  nonsuit  or  non  pros,  whert 
plaintiff  has  not  filed  security  for  costs,  under  an  alternative 
order,  held  irregular,  should  first  move  for  an  absolute  order.  39 

"Where  defendant  asks  costs  on  motion  to  change  venue,  he  must 

pay  costs 4] 

*  In  an  action  against  three  defendants,  and  the  suit  was  severed  as 
to  two,  and  judgment  entered :  the  third  pleaded,  and  subse- 
quently moved  for  judgment  as  in  case  of  nonsuit,  with  his 
papers  entitled  with  all  three  defendants :  held,  that  the  pa- 
pers were  entitled  wrong.  The  defendant  moving,  should 
have  moved  alone 64 

An  original  affidavit  to  a  plea  must  be  served,  a  copy  will  not 

answer 73,   106 

The  advice  of  an  attorney  is  not  the  advice  of  counsel  within  the 

meaning  of  the  rule 74 

Substitution  of  attorneys  should  be  entered  and  notice  given 90 

A  motion  denied  with  costs,  is  conclusive  against  another  motion 

on  the  merits 108 

An  alternative  writ  of  mandamus  cannot  be  served  in  vacation. . .   114 

"Where  parties  and  attorneys  all  reside  in  the  city  of  New- York,  mo- 
tion for  judgment  as  in  case  of  nonsuit  may  be  made  before 
circuit  judge  under  laws  of  1841.  It  also  may  be  made  at 
special  term 118 

A  motion  denied,  cannot  again  be  renewed  without  first  obtain- 
ing leave 164 


261  NEW-YORK  PRACTICE  REPORTS. 

Index. 

PAGE 
PRACTICE.  No  notice  of  signing  and  filing  report  of  referees  is  necessary 

to  be  given  to  opposite  party 156 

Counsel  must  be  in  attendance  upon  the  term,  and  watch  their 

motion,  otherwise  a  default  taken  against  them  will  not  be 

opened 112 

A  party  may  stipulate  a  second  time  as  a  matter  of  course  where 

the  first  has  been  performed 173 

Where  both  parties  recover  a  portion  of  the  property  hi  action  of 

replevin  both  are  entitled  to  costs 174 

A  notice  of  motion  cannot  be  in  the  alternative 191 

Two  sureties  (without  the  principal)  held  sufficient  in  a  bond  for 

security  for  costs 191 

A  defendant  cannot  appear  and  plead  as  a  matter  of  course,  not 

having  been  served  with  process 201 

The  affidavit  of  amount  due  by  the  condition  of  bond  on  judgment 

entered  on  bond  and  warrant  of  attorney  need  not  be  filed. .  223 
An  irregularity  occurring  under  the  old  rules,  and  motion  made 

since  the  adoption  of  the  new  rules,  the  old  rules  govern  as  to 

costs  of  motion 229 

A  declaration  should  conform  strictly  to  the  ac  etiam  clause  of  the 

capias 244 

Recovery  against  a  surety  cannot  be  had  under  the  money  counts 

where  his  character  of  surety  appears  on  the  face  of  the  note, 

a  special  count  is  necessary 247 

A  director  or  corporator  has  a  right  at  all  reasonable  times,  to  ex- 
amine the  books,  records  and  papers  of  the  company 247 

Defendant  may  have  leave  to  renew  motion  to  change  venue, 

where  he  is  answered  that  a  default  has  been  entered 248 

A  foreign  corporation  cannot  be  sued  by  original  writ  of  summons, 

only  by  attachment 250 

PRECEPT.    To  collect  costs  specified  in  the  rulo,  issues  under  the  statute 

without  motion 89 

To  set  aside  for  irregularity,  not  allowed  $1  costs  for  issuing 192 


R 


EFERENCE.    Will  be  denied  where  it  appears  substantial  questions  of 

law  will  arise 168 

REPLEVIN.     To  set  writ  of  irregularity 15 

To  increase  amount  of  bond,  &c 43,  245 

For  leave  to  amend  writ ...  149 


NEW-YORK  PRACTICE  REPORTS.  262 

Index. 

PAGE 

REPORT  OF  REFEREES.     To  set  aside  for  irregularity 9S,  144 

For  leave  to  move  to  set  aside,  report  of 114,  1G6 

RULE.    To  set  aside,  granting  judgment  as  in  case  of  nonsuit 6 

For  leave  to  defendant  to  avail  himself  of 9 

To  vacate,  setting  aside  judgment  of  nonpros 12 

To  set  aside,  discontinuing  suit 64 

Where  entered  denied,  motion  must  be  made  for  leave  to  renew. .  164 

To  set  aside  for  irregularity  to  plead 214 

To  vacate,  denying  a  new  trial 226 


UCI 


HE  FACIAS.    To  set  aside  writ  and  subsequent  proceedings  for  irreg- 
ularity.    167 

SERVICE.     Absolute  order  for  security  for  costs,  should  be  served  in  20 

days 79 

Of  papers  after  mail  hours 87,  173 

Of  papers  made  by  mail 89,  158 

On  the  same  daytf  filing,  good 149 

By  putting  in  the  post-office  within  the  time,  although  not  received 

until  after  the  time,  &c.,  good 152 

Of  papers  in  office  by  unlocking  office  door 199,  2  53 

SETTLEMENT  OR  AGREEMENT.     Parol,  between  parties,  held  good     95 

103,  184,  185 

Of  costs,  before  appeal 236 

Between  sheriff  and  defendant,  held  good  as  against  plaintiff,  sheriff 
having  authority 241 

SHERIFFS.     To  set  aside  sale 77,  112 

To  set  aside,  inquisition,  &c 91 

Pay  over  surplus  moneys,  &c 133 

Evasive  return  on  execution 153 

Suit  on  a  bond  on  the  arrest  of  defendant 154 

For  an  order  directing  the  collection  of  co-defendant 158 

Pay  over  moneys  to  landlord,  &c.,  question  of  levy 220 

Pay  over  moneys. . . , 226 

An  action  against  for  irregular  sale 235 

SUPREME  COURT  COMMISSIONER.    To  vacate  order  of. 66,  251 

Recorder's  powers  under  39th  rule 114 


263  NEW-YORK  PRACTICE  REPORTS. 


1 


Index. 

PAGE 

1 

ERMS.  On  setting  aside  judgment  as  in  case  of  nonsuit,  &c 6,  237 

On  striking  cause  from  calendar  and  stay  of  proceedings 7 

On  leave  to  comply  with  a  former  order 9 

To  come  in  and  defend 9 

On  leave  to  amend  plea  of  bankrupt's  discharge,  &c 57 

On  which  writ  of  error  may  be  amended 10,  250 

On  which  defendant  may  plead  bankrupt  discharge,  10,  66,  99,  210 

239 
On  which  default  may  be  opened,  &c 11,  14,  17,  26,  136 

On  which  default,  &c.,  will  be  set  aside 15,  55,  73,  87,  136,  225 

On  which  inquest,  verdict  and  subsequent  proceedings,  &c,  will  be 

set  aside 23,  26,  35,  40,  45,  68,  74,  206,  208 

On  which  writ  of  replevin  may  be  amended 148 

On  granting  a  commission 30,     68 

On  which  default  may  be  opened  taken  at  general  term  41,  43,  52,     53 

On  which  judgment  for  costs  against  plaintiff  set  aside 46 

On  which  judgment  set  aside,  &c 53 

On  leave  to  make  and  serve  a  case  or  bill  of  exceptions 7,     60 

On  leave  to  amend  declaration,  &c 5,  61,  82,  234 

On  allowing  papers  to  be  served  to  set  aside  report  of  referees 114 

On  staying  proceedings  until  case  is  decided  in  the  court  of  errors  176 
On  requiring  attorney  to  accept  pleas  . . .  ». 237 

TROVER.     An  amdavit  to  hold  to  bail  in,  not  necessary 246 

TIME.    To  plead,  after  admission  of  service  through  the  post-office 5 


V 


ENUE.    To  change,  41,  54,  55,  56,  62,  70,  73,  97,  122,  156,  162,  165,  184 

195,  222,  227,  234,  248,  254. 

VERDICT.    To  set  aside  for  irregularity,  &c 19,  72,  175 

To  set  aside 20,  62,  208 

To  set  aside  rule  for  judgment,  &c 35 

For  leave  to  enter  judgment  on 140 


W 


RIT  OF  ERROR.    To  quash  or  supersede 10,  155,  219 

To  set  aside,  &c 17,  107,    250 

To  quash  and  subsequent  proceedings 65 

To  amend  return  to 215 

WASTE.    For  an  order  to  restrain  from 103 


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